Motor Vehicle Dealers Act 1975
Motor Vehicle Dealers Act 1975
Motor Vehicle Dealers Act 1975
Checking for alerts... Loading...
Motor Vehicle Dealers Act 1975
Public Act |
1975 No 127 |
|
Date of assent |
10 October 1975 |
|
Contents
An Act to make better provision for the licensing and disciplining of motor vehicle dealers and their staff, and to reform the law relating to contracts for the sale of motor vehicles by dealers, in order to promote and protect the interests of consumers
BE IT ENACTED by the General Assembly of New Zealand in Parliament assembled, and by the authority of the same, as follows:
1 Short Title and commencement
(1)
This Act may be cited as the Motor Vehicle Dealers Act 1975.
(2)
This Act shall come into force on a date to be appointed by the Governor-General by Order in Council, and different dates may be so appointed in respect of different provisions of this Act.
2 Interpretation
(1)
In this Act, unless the context otherwise requires,—
“Approved salesman” means a person who has been approved by the Court under Part VI of this Act as a motor vehicle salesman:
“Association” means the Motor Trade Association Incorporated:
“Auctioneer” means a person who is the holder of a licence issued to him under the Auctioneers Act 1928:
“Board” means the Motor Vehicle Salesmen Registration Board constituted under section 63 of this Act:
“Branch office”, in relation to an applicant for a licence or to a licensee, means every place of business (other than his principal place of business) in respect of which he is required to hold a licence under this Act:
“Branch manager”, in relation to any branch office of a licensee, means the person for the time being approved by the Court to conduct the licensee’s business as a motor vehicle dealer at that branch office:
“Car-fair operator” means a person who, for rent, fee, commission, or other valuable consideration supplies or offers to supply to any other person any premises, amenity, facility, or service designed or intended to introduce to one another, or to facilitate the transaction of business between, willing vendors and purchasers of motor vehicles; but does not include any Agricultural and Pastoral Society or any other person or body of persons who promotes, arranges, or otherwise assists in the holding of any agricultural and pastoral show, trade fair, or other agricultural, industrial, or commercial exhibition held or to be held wholly or partly for trade purposes:
“Car consultant” means a person, other than a car-fair operator, who, for rent, fee, commission, or other valuable consideration is engaged by any other person (not being a licensed motor vehicle dealer) to advise or to act as agent for that other person on any matter relating to the purchase, sale, exchange, or lease of any motor vehicle by that other person, not being a matter relating solely to the structural, material, or mechanical condition of the motor vehicle:
“Certificate of approval” means a certificate of approval issued under section 84 of this Act:
“Commercial vehicle” means a motor vehicle (other than a motor cycle or power cycle) designed exclusively or principally for—
(a)
The carriage of goods; or
(b)
The carriage of persons exceeding 9 in number,
including the driver;—
but does not include—
(i)
A motor vehicle of a type commonly known as a “panel van”
, or as a “stationwagon”
, or as an “estate car”
, or as a “utility”
, if the cabin, bonnet, forward part of the chassis, and the engine and mechanical equipment of the vehicle are substantially the same as those of a motorcar of the same make and model; or
(ii)
Any van of which the gross weight as determined by the manufacturer does not exceed 3,000 kilograms (6,613.8678 1bs); or
(iii)
A camper van:
“Contract of sale”, in relation to a motor vehicle, includes a contract to exchange or lease the motor vehicle:
“Council” means the Council of the Institute:
“Court”, “Magistrate”, and “Registrar” have the meanings respectively assigned to them by section 3 of this Act:
“Crime against the person” means any crime described in section 128, section 129, or section 135 or in Part VIII of the Crimes Act 1961, except a crime described in sections 151 to 157, sections 182 to 187, or sections 205 to 207 of that Act:
“Crime involving dishonesty” means any crime described in sections 217 to 292 of the Crimes Act 1961:
“Defect”, in relation to any motor vehicle sold or offered for sale by any licensee, means any structural or mechanical flaw or malfunctioning that, having regard to the age of the motor vehicle, the total distance travelled by it, and the price obtained or sought for it by the licensee, has adversely affected or is likely to adversely affect—
(a)
The safety or roadworthiness of the motor vehicle; or
(b)
The market value of the motor vehicle; or
(c)
The serviceability of the motor vehicle—
but does not include any panel repair or any damage caused by corrosion unless, by reason of that repair or damage, the motor vehicle is not in the condition required for the issue of a warrant of fitness in accordance with the Traffic Regulations 1956:
“Disciplinary Committee” means the Disciplinary Committee constituted under section 119 of this Act:
“Disputes Tribunal” means a Disputes Tribunal constituted under section 97 of this Act:
“Engine capacity”, in relation to the engine installed in a motor vehicle,—
(a)
In any case where the total piston displacement of that engine has been specified by the manufacturer in cubic centimetres and the engine has not subsequently been modified in respect of its piston displacement, means the total piston displacement of that engine as so specified:
(b)
In any case where the total piston displacement of that engine has been specified by the manufacturer in cubic inches and the engine has not subsequently been modified in respect of its piston displacement, means the total piston displacement as so specified, multiplied by 16.37 but rounded to the nearest complete multiple of 50:
(c)
In any other case, means the total piston displacement of the engine as determined by the Secretary for Transport:
“Finance company” means any person, or any body of persons whether incorporated or unincorporated, whose ordinary business is not that of dealing in motor vehicles but who, in the course of his or its ordinary business, purchases, exchanges, or takes by way of assignment any motor vehicle for the purpose—
(a)
Of letting or hiring it to any other person under a hire purchase agreement; or
(b)
Of effecting a security over it; or
(c)
Of leasing it to any other person without conferring on that person the right to purchase the motor vehicle;—
or sells any motor vehicle purchased, exchanged, or taken by way of assignment for any of those purposes, or pursuant to a right of sale conferred by a hire purchase agreement, or an instrument of security, or a lease:
“Fund” means the Motor Vehicle Dealers Fidelity Guarantee Fund established under section 30 of this Act:
“Hire purchase agreement” has the meaning assigned to it by section 2 of the Hire Purchase Act 1971:
“Institute” means the Motor Vehicle Dealers Institute Incorporated:
“Invalid carriage” means a vehicle which is drawn or propelled by mechanical power, and which is specially designed and constructed, and not merely adapted, for the use of persons suffering from a physical defect or disability:
“Leases”, in relation to a motor vehicle, means grants a lease of that motor vehicle:
“Licence” means a motor vehicle dealer’s licence issued under section 15 of this Act; and “licensee”
has a corresponding meaning:
“Licensee company” means a company that is for the time being the holder of a licence under this Act:
“Manufacturer” means a person who engages in the business of manufacturing or assembling motor vehicles:
“Minister” means the Minister of Justice:
“Model designation”, in relation to a motor vehicle of a particular origin, means the combination of the trademark name and the words, symbols, and series identification used by the manufacturer to identify a vehicle of that model:
“Motor cycle” means a motor vehicle running on 2 wheels, or on not more than 3 wheels when fitted with a sidecar; and includes any vehicle with motor cycle controls declared by the Secretary for Transport to be a motor cycle; but does not include a power cycle:
“Motor vehicle” means a vehicle that is drawn or propelled by mechanical power, other than—
(a)
A vehicle running on rails; or
(b)
An invalid carriage; or
(c)
A motor cycle the total cylinder capacity of which does not exceed 60 cubic centimetres; or
(d)
A power cycle; or
(e)
A steam roller; or
(f)
A trailer; or
(g)
An aircraft; or
(h)
A tractor; or
(i)
A concrete mixer; or
(j)
An omnibus; or
(k)
A go-kart; or
(l)
A motor mower; or
(m)
A specialised vehicle designed exclusively or principally for use in connection with agriculture, forestry, sawmilling or logging, fire fighting, ditch digging, drilling or boring, mining, tunnelling, road construction or maintenance, earth moving, building construction or demolition, the loading or stacking of goods, or the carriage of liquids in bulk or of refrigerated goods; or
(n)
A vehicle of any other class or description of vehicle declared by the Governor-General, by Order in Council, not to be a motor vehicle for the purposes of this Act:
“Motor vehicle dealer” has the meaning assigned to it by section 4 of this Act:
“New motor vehicle” means a motor vehicle that is not a secondhand motor vehicle:
“Officer”, in relation to a licensee company,—
(a)
In any case where the company conducts business only as a motor vehicle dealer, means every director, manager, and secretary of the company, and every other person, however designated, who is responsible for the management of the company:
(b)
In any case where the company carries on any other business in addition to the business of a motor vehicle dealer, means every director, manager, secretary, or other person, however designated, who is responsible for the management of the company’s motor vehicle dealer’s business:
“Owner”, in relation to a motor vehicle, means the person lawfully entitled to possession thereof, except where—
(a)
The motor vehicle is subject to a bailment that is for a period not exceeding 28 days; or
(b)
The motor vehicle is let on hire pursuant to the terms of a rental service licence within the meaning of the Transport Act 1962—
in which case “owner”
means the person who, but for the bailment or letting on hire, would be lawfully entitled to possession of the motor vehicle; and “owned”
and “ownership”
have corresponding meanings:
“Power cycle” means—
(a)
A pedal vehicle running on 2 or 3 wheels that for alternative propulsion is fitted with a motor; or
(b)
A motor vehicle running on 2 wheels that for alternative propulsion is fitted with pedals,—
being in each case a vehicle the motor of which has an output not exceeding 2 kilowatts:
“Prescribed” means prescribed by regulations made under this Act:
“Principal place of business”, in relation to an applicant for a licence or to a licensee, means the place of business named as his principal place of business in his application or his licence, as the case may require:
“Prospective salesman”, in relation to an application for the approval of a salesman, means the person in respect of whom the application is made:
“Register” means the Register of Motor Vehicle Salesmen set up and maintained under section 73 of this Act:
“Registered salesman” means a person who for the time being is registered under Part V of this Act as a motor vehicle salesman:
“Reportable offence”, in relation to any person, means—
(a)
Any crime against the person and any crime involving dishonesty of which that person has been convicted within the preceding period of 5 years; and
(b)
Any crime against the person and any crime involving dishonesty of which that person has been convicted and sentenced to detention for at least 12 months in a penal institution within the preceding period of—
(i)
Seven years; or
(ii)
Three times the number of complete years of detention which he has served in accordance with that sentence,—
whichever is the longer:
“Salesman” means a person employed by a licensee to conduct negotiations on behalf of the licensee for the purchase, sale, exchange, or lease of any motor vehicle:
“Secondhand motor vehicle” includes a vehicle that has, at any time before being offered or exposed for sale, been registered under the Transport Act 1962 or any corresponding enactment of another country:
“Secretary” means the Secretary of the Board:
“Sell”, in relation to any motor vehicle, means sell, or offer to sell, or expose for sale that motor vehicle or any interest in that motor vehicle; and “sale”
has a corresponding meaning:
“Subsidiary place of business”, in relation to a licensee, means any place of business in respect of which, in accordance with any of the provisions of section 7 of this Act, he is not required to hold a licence:
“Term”, in relation to a contract for the sale of a motor vehicle, means a condition:
“Trade owner”, in relation to any motor vehicle, means any person who acquires that vehicle for the purpose of reselling it, or of letting or hiring it under a hire purchase agreement, or of effecting a security over it, or of leasing it to any other person without conferring on that person the right to purchase the motor vehicle:
“Trailer” means a vehicle without motive power that is drawn or propelled or is capable of being drawn or propelled by a motor vehicle from which it is readily detachable; and includes a sidecar for a motor cycle:
“Vehicle” means a contrivance that is equipped with wheels or revolving runners upon which it moves or is moved:
“Wholesaler” means a person who engages in the business of selling new motor vehicles to licensed motor vehicle dealers, or to other persons who engage in that business:
“Year” means a period of 12 consecutive months commencing on the first day of April.
(2)
For the purposes of this Act, where a motor vehicle dealer sells a motor vehicle to a finance company, whether as principal or agent, in the expectation that the finance company will resell or lease the motor vehicle to a particular person, and the finance company subsequently resells or leases the motor vehicle to that person, the motor vehicle dealer shall be deemed to have sold or leased the motor vehicle to that person.
Compare: 1958, No. 112, s. 2(1); Second-hand Motor Vehicles Act 1971 (S.A.), s. 4(2)
3 Meaning of “Court”
, “Magistrate”
, and “Registrar”
(1)
In this Act, unless the context otherwise requires, “Court”
,—
(a)
In relation to an application under section 9 of this Act for the issue of a licence in respect of the applicant’s proposed principal place of business, or to a notice of objection to any such application, or to a notice of the Institute’s desire to be heard in respect of any such application, or to an application under section 16 of this Act for the approval of a name, or to an application under section 25 of this Act made by an applicant for a licence for exemption from membership of the Institute, means the Magistrate’s Court nearest to the place named in the application as the applicant’s proposed principal place of business:
(b)
In relation to an application under section 9 of this Act for the issue of a licence in respect of any proposed branch office of the applicant, or to a notice of objection to any such application, or to a notice of the Institute’s desire to be heard in respect of any such application, means the Magistrate’s Court nearest to the proposed branch office:
(c)
In relation to an application under section 18 of this Act for the renewal of a licence relating to the licensee’s principal place of business, or to a notice of objection to any such application, or to the Institute’s desire to be heard in respect of any such application, or to an application under section 20 of this Act for the approval of an officer of a licensee company, or to an application under section 24 or section 25 of this Act for the suspension of a licensee, or to an application under section 25 of this Act made by a licensee for exemption from membership of the Institute, or to an application under section 46 or section 47 of this Act for authority to take possession of or inspect any document, or to an application under section 48 of this Act for the return of any document, or to a notice under section 56 of this Act of a change of registered office, means the Magistrate’s Court nearest to the licensee’s principal place of business:
(d)
In relation to an application under section 18 of this Act for the renewal of a licence relating to a branch office, or to a notice of objection to any such application, or to the Institute’s desire to be heard in respect of any such application, or to an application under section 21 of this Act for the approval of a branch manager, means the Magistrate’s Court nearest to the branch office:
(e)
In relation to an application under section 7 of this Act for exemption from the requirement to hold a licence in respect of any particular place of business, means the Magistrate’s Court nearest to that place of business:
(f)
In relation to the surrender of a licence under section 22 of this Act, or to an application under section 23 of this Act for the issue of a temporary licence, or to an application under section 112 of this Act for the cancellation of a licence or the suspension of a licensee, means the Magistrate’s Court nearest to the place of business to which the licence relates:
(g)
In relation to an application under section 81 of this Act for approval of an unregistered salesman, or to a notice of objection to any such application, or to a notice of the Institute’s desire to be heard in respect of any such application, means the Magistrate’s Court nearest to the place named in the application as the place of business at which the applicant desires to employ the prospective salesman:
(h)
In relation to an application under section 87 of this Act for the renewal of a certificate of approval, or to a notice of the Institute’s desire to object to or be heard in respect of any such application, or to an application under section 117 of this Act for the cancellation of a certificate of approval or the suspension of a salesman, means the Magistrate’s Court in which the certificate of approval was granted:
(i)
In relation to the registration under section 104 of this Act of a decision of a Disputes Tribunal, means the Magistrate’s Court nearest to the place of business at which the motor vehicle in respect of which the decision is given was sold.
(2)
In this Act, unless the context otherwise requires,—
“Magistrate”, in relation to a Magistrate’s Court, means any Magistrate who is for the time being exercising civil jurisdiction in that Court:
“Registrar” means the Registrar of the Court, and includes a Deputy Registrar.
(3)
Nothing in this section shall limit or affect any rules of Court made under the Magistrates’ Courts Act 1947.
4 Meaning of “motor vehicle dealer”
(1)
Subject to the succeeding provisions of this section, and to sections 5 and 6 of this Act, in this Act the term “motor vehicle dealer”
means any person who carries on the business of purchasing, selling, exchanging, or leasing motor vehicles (whether as principal or agent), whether or not that person carries on any other business; and includes a car consultant.
(2)
Without limiting the definition in subsection (1) of this section, every person who holds himself out to the public as being ready to carry on the business of purchasing, selling, exchanging, or leasing motor vehicles shall be deemed to be a motor vehicle dealer for the purposes of this Act.
(3)
Every person who, in any period of 12 consecutive months commencing after the commencement of this Act, purchases, sells, exchanges, or leases more than 6 motor vehicles shall be presumed to be a motor vehicle dealer for the purposes of this Act, unless he proves that he did not purchase, sell, exchange, or lease the motor vehicles for the primary purpose of gain.
(4)
Notwithstanding the foregoing provisions of this section, no person shall be deemed to be a motor vehicle dealer for the purposes of this Act by reason only of the fact that—
(a)
Being a solicitor, he acts, in the course of his business as a solicitor, as agent in respect of the purchase, sale, exchange, or lease of any motor vehicle, unless he is remunerated for so acting by commission in addition to, or instead of, his professional charges:
(b)
Being a manufacturer or wholesaler, he sells any motor vehicle to—
(i)
The Crown; or
(ii)
Any other wholesaler, or to a licensed motor vehicle dealer; or
(iii)
Any person who is or has been employed by the manufacturer or wholesaler:
(c)
Being the holder of a secondhand dealer’s licence granted under the Secondhand Dealers Act 1963, he purchases, in the course of his business as a secondhand dealer, any motor vehicle for wrecking or dismantling by him:
(d)
Being a finance company, it purchases, sells, exchanges, or leases any motor vehicle in the ordinary course of its business as a finance company:
(e)
In the course of carrying on any other business (not being the business of a motor vehicle dealer) he—
(i)
Purchases any motor vehicle for use in connection with that business, with or without the intention of reselling it after such use; or
(ii)
Resells any such vehicle after using it as aforesaid.
Compare: 1958, No. 112, s. 2
5 Sales of motor vehicles by auctioneers
(1)
No auctioneer shall be deemed to be a motor vehicle dealer for the purposes of this Act by reason only of the fact that in the course of his business as an auctioneer he sells any motor vehicle if, in respect of such sale, he complies with subsection (2) of this section.
(2)
Every auctioneer shall keep in the prescribed form a record of every motor vehicle that he sells in the course of his business as an auctioneer.
(3)
Every auctioneer shall keep the record required to be kept by subsection (2) of this section for a period of not less than 6 years after the making of that record, or after the making of the last entry in any book containing more than 1 such record.
(4)
Every record required to be kept under this section, and every book containing more than 1 such record, shall be open to inspection at all reasonable times by any member of the Police, who may make such copies thereof as he thinks fit.
(5)
Every auctioneer commits an offence against this Act who—
(a)
Fails to keep any record to which this section applies for the period required by subsection (3) of this section; or
(b)
Refuses or fails to produce to any member of the Police demanding the same any record or book of records required for inspection under this section and in his possession, custody, or control.
6 Car-fair operators
(1)
Where any motor vehicle is sold through a car-fair operator, the car-fair operator shall be deemed to be a motor vehicle dealer for the purposes of this Act unless, in respect of the motor vehicle, he complies with subsections (2) and (3) of this section.
(2)
In respect of every motor vehicle offered or displayed for sale through a car-fair operator, the car-fair operator shall—
(a)
Insert or cause to be inserted in all advertisements issued or published by him a statement to the effect that the motor vehicle is offered for sale “Without statutory warranty”
; and
(b)
Attach or cause to be attached to the motor vehicle in a prominent position a notice to the effect that the motor vehicle is offered for sale “Without statutory warranty”
.
(3)
In every advertisement to which paragraph (a) of subsection (2) of this section applies and in every notice to which paragraph (b) of that subsection applies the car-fair operator shall include a statement to the effect that he is not a licensed motor vehicle dealer.
Part I Licensing of Motor Vehicle Dealers
7 Motor vehicle dealers to be licensed
(1)
Every person who carries on business as a motor vehicle dealer is required to hold a current licence under this Act.
(2)
Where 2 or more persons carry on business as motor vehicle dealers in partnership with one another each of those persons is required to hold a licence.
(3)
Subject to subsections (4) and (5) of this section, where a motor vehicle dealer carries on business as such at more than one place a separate licence is required in respect of each such place of business.
(4)
A separate licence shall not be required by a motor vehicle dealer in respect of any place of business situated within a radius of 5 kilometres from any other place of business in respect of which he holds a licence.
(5)
If, on an application in that behalf made to the Court by a licensee in respect of any place of business or proposed place of business, the Magistrate is satisfied that, having regard to—
(a)
The locality of the place of business in relation to the licensee’s principal place of business or any branch office of the licensee; and
(b)
The volume of business transacted or likely to be transacted at that place of business; and
(c)
Such other matters as the Magistrate considers relevant,—
the licensee or, as the case may require, the person charged with the management of the branch office is or will be able to personally supervise, manage, and control both the principal place of business or (as the case may require) the branch office and the place of business to which the application relates, he may make an order exempting the licensee from the requirement to hold a licence in respect of that place of business.
(6)
Every person commits an offence and is liable on summary conviction to a fine not exceeding $2,000 who carries on business as a motor vehicle dealer at any place in respect of which he is not licensed unless he has been exempted from the requirement to hold a licence in respect of that place of business in accordance with subsection (5) of this section.
(7)
In addition to any penalty that may be imposed under subsection (6) of this section, every person who commits an offence against this section shall be liable to forfeit to Her Majesty the Queen all money received by him by way of commission or profit for any services or work performed by him as an unlicensed motor vehicle dealer.
(8)
All money forfeited to Her Majesty under subsection (7) of this section shall be recoverable at the suit of Her Majesty in any Court of competent jurisdiction, or may be assessed by the Court by which the defendant is convicted, and be recoverable in like manner as a fine.
Compare: 1958, No. 112, s. 3(1), 29
8 Eligibility for licences
(1)
Subject to the provisions of this Act, every person who—
(a)
Has attained his majority; or
(b)
Is a company; or
(c)
Was, at any time before the passing of this Act, the holder of a motor vehicle dealer’s licence issued under the Motor Vehicle Dealers Act 1958—
shall be eligible to apply for and obtain a licence under this Act.
(2)
Notwithstanding anything in subsection (1) of this section, no person shall apply for or obtain a licence under this Act if—
(a)
He is a bankrupt and has not obtained his order of discharge, or, if he has obtained his order of discharge, it is suspended for a term not yet expired or is subject to conditions not yet fulfilled; or
(b)
A motor vehicle dealer’s licence previously held by him has been cancelled under section 25 of the Motor Vehicle Dealers Act 1958 or under section 115 of this Act within the preceding period of 12 months; or
(c)
An application by him for a motor vehicle dealer’s licence or for the renewal of such a licence under the Motor Vehicle Dealers Act 1958 or this Act has been refused within the preceding period of 12 months.
(3)
No company shall apply for or obtain a licence if any person who will be an officer of the company if the company is granted a licence is disqualified, under any of the foregoing provisions of this section, from applying for or obtaining a licence under this Act in his own right.
(4)
Every person who applies for or obtains a licence knowing that he is not eligible to do so under the foregoing provisions of this section commits an offence and is liable on summary conviction to a fine not exceeding $2,000.
Compare: 1958, No. 112, s. 10
9 Application for licence
(1)
Every person who desires to obtain a licence shall make application to the Court in the prescribed form.
(2)
Every application shall state the following information:
(a)
The full name, residential address, occupation, and date of birth of the applicant:
(b)
Where the applicant is a company and the application relates to the company’s principal place of business, the full name, residential address, occupation, and date of birth of every person who will be an officer of the company if the application is granted, and the nature of any other business carried on or proposed to be carried on by the company:
(c)
Where the application relates to a branch office, the full name, residential address, occupation, and date of birth of the person who will be responsible for the conduct of the licensee’s business as a motor vehicle dealer at that branch office if the application is granted:
(d)
The address of every place of business from which the applicant proposes to carry on business, and, where he proposes to carry on business from more than one place of business, which of those places is to be his principal place of business, which of those places is or are to be a branch office or branch offices, and which of those places is or are to be a subsidiary place or subsidiary places of business:
(e)
Such other matters as may be prescribed.
(3)
The application may also state an address, other than the residential address of the applicant, at which documents relating to the application may be served on him.
(4)
The application shall be accompanied by—
(a)
The prescribed fee; and
(b)
A declaration in the prescribed form to the effect that the applicant is eligible to apply for and hold a licence under this Act.
Compare: 1958, No. 112, s. 4
10 Notice of application to be given to Institute
(1)
Every applicant for a licence shall serve on the Institute a copy of his application, together with a copy of every document (not being a document relating exclusively to the applicant’s financial position) filed in support of the application.
(2)
Within 1 month after the receipt by the Institute of a copy of an application under subsection (1) of this section, it may file in the Court a notice of its desire—
(a)
To object to the issue of a licence to the applicant, in which case it shall state in the notice the grounds of its objection; or
(b)
To be heard in respect of the application, in which case it shall state in the notice the reasons why it desires to be heard.
(3)
The Institute shall cause a copy of any notice filed by it under subsection (2) of this section to be served on the applicant within 7 days after filing it in the Court.
Compare: 1963, No. 135, s. 5(3), 5(4)
11 Public notice to be given
(1)
In addition to complying with section 10 of this Act, every applicant for a licence shall cause a notice of the application in the prescribed form to be published twice, at an interval of not more than 14 days, in a newspaper or newspapers approved for the purpose by the Registrar.
(2)
Any person (other than the Institute) may, within 1 month after the date of the first publication of the notice, file in the Court a notice of his desire to object to the issue of a licence to the applicant.
(3)
No objection may be made under subsection (2) of this section except on one or more of the following grounds:
(a)
That by virtue of the provisions of section 8 of this Act the applicant is not eligible to apply for or obtain a licence:
(b)
Where the applicant is a person other than a company, that the applicant is not, by reason of his personal character, fitness, or financial position, a proper person to be the holder of a licence:
(c)
Where the applicant is a company, that it is not, by reason of its financial position, or of the nature of any other business carried on or to be carried on by it, a proper person to be the holder of a licence:
(d)
Where the applicant is a company, that any person who will be an officer of the company if the application is granted is not, by reason of his personal character or fitness, a proper person to be an officer of a licensee company:
(e)
Where the application relates to a branch office, that person who will be responsible for the conduct of the licensee’s business as a motor vehicle dealer at the branch office is not a proper person to conduct such business.
(4)
Every notice of objection filed under subsection (2) of this section shall state each ground on which the objection is made.
(5)
The person filing the notice of objection shall cause a copy of the notice to be served on the applicant and the Institute within 7 days after filing it in the Court.
Compare: 1958, No. 112, s. 7
12 Magistrate not to hear or consider an application until satisfied of certain matters
(1)
No Magistrate shall hear or consider an application for a licence until he is satisfied that the applicant has—
(a)
Served on the Institute a copy of every document that is required to be so served under subsection (1) of section 10 of this Act; and
(b)
Caused to be published a notice of his application in accordance with subsection (1) of section 11 of this Act; and
(c)
Paid the required contribution to the Fidelity Guarantee Fund in accordance with subsection (1) of section 35 of this Act; and
(d)
Paid to the Institute the fees required to be paid under the Rules of the Institute.
(2)
For the purposes of subsection (1) of this section, a certificate under the hand of the secretary of the local Branch of the Institute to the effect that the applicant has complied with the requirements referred to in paragraphs (a), (c), and (d) of that subsection shall, in the absence of proof to the contrary, be sufficient evidence of compliance.
(3)
Notwithstanding subsection (1) of this section, no application for a licence shall be heard or considered before the expiration of 1 month after the applicant has complied with the requirements of subsection (1) of section 10 and subsection (1) of section 11 of this Act.
Compare: 1963, No. 135, s. 5(5)
13 Hearing of application
(1)
An application for a licence, or any evidence in relation to an application, may be heard by the Magistrate, either wholly or partly, in open Court or in Chambers, as he thinks fit.
(2)
The applicant, the Institute (if it has filed a notice in respect of the application under subsection (2) of section 10 of this Act), and every person who has filed a notice of objection in respect of the application under subsection (2) of section 11 of this Act, shall be entitled to appear and be heard in respect of the application.
Compare: 1958, No. 112, s. 8
14 Evidence of suitability required
(1)
The Magistrate hearing an application for the issue of a licence to any person other than a company shall not grant the application unless he is satisfied that the personal character, fitness, and financial position of the applicant are such that, having regard to the interests of the public, the applicant is a proper person to carry on the business of a motor vehicle dealer.
(2)
The Magistrate hearing an application for the issue of a licence to a company shall not grant the application unless he is satisfied that—
(a)
Every person who will be an officer of the company if the application is granted is eligible to apply for and obtain a licence under this Act in his own right; and
(b)
The financial position of the company, and the nature of all other business that the company is carrying on or proposes to carry on, are such that, having regard to the interests of the public, the company is a proper person to carry on the business of a motor vehicle dealer.
(3)
The Magistrate hearing an application for the issue of a licence in respect of a branch office shall not grant the application unless he is satisfied that the person who will be responsible for the conduct of the licensee’s business as a motor vehicle dealer at the branch office if the application is granted is eligible to apply for and obtain a licence under this Act in his own right.
(4)
In determining, for the purposes of any application, the fitness of any person, the Magistrate shall require to be satisfied that the person—
(a)
Was, immediately before the commencement of this Part of this Act, the holder of a licence under the Motor Vehicle Dealer’s Act 1958; or
(b)
Is a registered salesman and has had, in the period of 3 years immediately preceding the date of the application, not less than 2 years’ experience as a salesman employed by the holder of a licence issued under that Act or under this Act.
(5)
Notwithstanding subsection (4) of this section, the Magistrate may in any case decide not to insist on compliance or complete compliance with the requirements of that subsection if he is satisfied that the relevant business experience, judgment, and general knowledge of the person whose fitness is to be determined are such that the Magistrate would be justified in so deciding.
(6)
In considering the suitability of any applicant in regard to his financial position, the Magistrate shall require to be satisfied that the applicant has sufficient material and financial resources to enable him to comply with the requirements of this Act.
(7)
Nothing in this section shall limit the discretion of the Magistrate hearing an application for a licence to refuse to grant the application if he is not satisfied that the applicant is a proper person to carry on the business of a motor vehicle dealer.
Compare: 1958, No. 112, s. 9
15 Grant of application and issue of licence
(1)
If, after hearing an application for a licence and considering all objections (if any) to the issue of a licence to the applicant made in accordance with this Part of this Act, the Magistrate is satisfied that the provisions of this Act in relation to the application have been complied with, and that the applicant or, as the case may require, the person who will be responsible for the conduct of the applicant’s business as a motor vehicle dealer at the branch office if the application is granted is a proper person to carry on the business of a motor vehicle dealer, he shall grant the application, and shall notify the applicant in writing that a licence will be issued to him when the Registrar has given his approval to any place of business under subsection (2) of this section.
(2)
In any case to which subsection (1) of this section applies, the Registrar, if he is satisfied that the applicant is entitled, by virtue of any right, permission, authority, consent, approval, or dispensation enjoyed by or granted to him under the provisions of the Town and Country Planning Act 1953 to carry on the business of a motor vehicle dealer from any place of business stated in the application, shall—
(a)
Approve that place of business; and
(b)
On payment to him of the prescribed fee, issue to the applicant a licence in the prescribed form; and
(c)
Endorse on the licence the address of the principal place of business or branch office to which the licence relates, and each subsidiary place of business approved by the Court under subsection (5) of section 7 of this Act.
(3)
If, in any case to which subsection (1) of this section applies the Magistrate is not satisfied of the matters referred to in that subsection he shall refuse the application and shall notify the applicant accordingly. In such a case the applicant shall be entitled to a refund of all money paid by him by way of contribution to the Fidelity Guarantee Fund in accordance with subsection (1) of section 35 of this Act.
Compare: 1958, No. 112, s. 8
16 Licence to be held in licensee’s own name unless Court otherwise approves
(1)
No licensee shall carry on business as a motor vehicle dealer under any name or style that is not—
(a)
His own name or style; or
(b)
Where the licensee is in partnership with any other person, the name or style of the firm or of one of the partners—
unless the name or style has first been approved by the Court.
(2)
An applicant for a licence, or a licensee, may at any time apply in writing to the Court to approve a name or style for the purposes of subsection (1) of this section.
(3)
A Magistrate shall not approve a name or style under subsection (2) of this section if he considers that the name or style so nearly resembles the name or style of any other person, firm, or company carrying on business as a motor vehicle dealer as to be likely to deceive, or that the name or style is that of any person, firm, or company—
(a)
Whose licence has been surrendered under section 22 of this Act; or
(b)
Whose application for a licence has at any time been refused, and who or which has not subsequently obtained such a licence.
(4)
Notwithstanding any of the foregoing provisions of this section, no licensee shall carry on the business of a motor vehicle dealer under more than one name or style.
(5)
Every licensee who contravenes subsection (1) or subsection (4) of this section commits an offence against this Act.
Compare: 1958, No. 112, s. 9(4), (5)
17 Effect of licence
(1)
A licence shall authorise the licensee during the currency of the licence to carry on the business of a motor vehicle dealer at any place of business that is from time to time endorsed on the licence.
(2)
A licence shall be personal to the licensee, and shall not be transferable or vest by operation of law in any person other than the licensee.
(3)
A licence shall, unless it is sooner cancelled, or the licensee is sooner suspended, in accordance with the provisions of this Act, continue in force until the expiration of the year in respect of which it is issued, and may from time to time be renewed for the next succeeding year.
Compare: 1958, No. 112, ss. 12, 13, and 16
18 Renewal of a licence
(1)
An application for the renewal of a licence shall be made in the prescribed form, and shall be filed in the Court not earlier than the 1st day of January and not later than the 15th day of February preceding the date of the expiry of the licence.
(2)
After filing the application in the Court, the applicant shall serve a copy of it on the Institute, in the same manner as if the application were an application for the issue of a licence.
(3)
The application shall not be heard before the expiration of 1 month after the applicant has complied with subsection (2) of this section.
(4)
The Institute may, before the 7th day of March preceding the date of the expiry of the licence, file in the Court a notice of its desire to object to the renewal of the licence, or to be heard in respect of the application, in the same manner as if the application were an application for the issue of a licence, and subsection (3) of section 10 of this Act, with any necessary modifications, shall apply accordingly.
(5)
Any person other than the Institute may, before the 7th day of March preceding the date of the expiry of the licence, file in the Court a notice of that person’s desire to object to the renewal of the licence on any of the following grounds:
(a)
Any of the grounds specified in subsection (3) of section 11 of this Act in relation to objections to the issue of a licence to any person; or
(b)
That the applicant has not properly supervised, managed, and controlled the conduct of his business as a motor vehicle dealer at his principal place of business and each of his branch offices, either personally or, in the case of a branch office, through the person for the time being approved by the Court; or
(c)
That the applicant has permitted any person other than an auctioneer, or a car-fair operator, or a licensee, or a branch manager, or a registered salesman, or an approved salesman, employed by him, to act as his agent in the conduct of his business as a motor vehicle dealer,—
and subsections (4) and (5) of section 11 of this Act, with any necessary modifications, shall apply as if the notice of objection were a notice of objection to the issue of a licence.
(6)
In any case where no notice is filed in the Court under subsection (4) or subsection (5) of this section, the Registrar shall grant the application without further inquiry.
(7)
Where a notice is filed in the Court within the time allowed, the application shall be heard and determined by a Magistrate, and sections 13, 14, and 15 of this Act, with any necessary modifications, shall apply as if the application were an application for the issue of a licence.
(8)
An application for the renewal of a licence, or any objection to the renewal of a licence, may be heard and determined under this section notwithstanding that the application or notice of objection is not filed by the date specified in this section, if the application or notice is filed before the date of the expiry of the licence.
(9)
Where an application for the renewal of a licence is granted, the Registrar shall, on payment to him of the prescribed fee, endorse the licence accordingly.
(10)
Where an application for the renewal of a licence has been made but not determined before the date on which the licence would otherwise expire, the licence shall, notwithstanding subsection (3) of section 17 of this Act, continue in force until the application is determined.
Compare: 1958, No. 112, s. 14
19 Licensee not to enter into partnership, except with another licensee
(1)
No licensee shall, in respect of his business as a motor vehicle dealer, enter into partnership with any person knowing that that person is not a licensee.
(2)
Every licensee who enters into partnership in contravention of subsection (1) of this section commits an offence against this Act.
Compare: 1958, No. 112, s. 18(2)
20 Persons not to act as officers of licensee company without Magistrate’s consent
(1)
No person shall act as an officer of a licensee company for any period in excess of 14 days without the approval of the Court.
(2)
An applicant for a licence or a licensee company may at any time apply to the Court in the prescribed form for approval of any person for the purposes of subsection (1) of this section.
(3)
A Magistrate shall not approve of any person for the purposes of subsection (1) of this section unless the Magistrate is satisfied—
(a)
That, taking into account the requirements of subsection (3) of section 8 of this Act, the company would still be qualified to apply for and obtain a licence; and
(b)
That, taking into account the requirements of subsection (2) of section 14 of this Act, the company would still be a proper person to carry on the business of a motor vehicle dealer.
(4)
Every person who acts in contravention of subsection (1) of this section commits an offence against this Act.
(5)
Every licensee company that employs any person or permits any person to act as an officer of the company in contravention of subsection (1) of this section commits an offence against this Act.
(6)
Notwithstanding the foregoing provisions of this section, where, for the purposes of subsection (1) of this section, an application for the consent of the Court has been filed but not determined, the Registrar may, in writing, authorise the licensee company to employ the person in respect of whom the application is made as an officer for any period not exceeding 1 month, or such longer period as a Magistrate, on application made to him in that behalf, may allow.
(7)
Notwithstanding anything in subsection (6) of this section, an authority given under that subsection shall in any event cease to have effect when the application for consent is determined.
Compare: 1958, No. 112, s. 18(3)
21 Licensee not to conduct business at branch office otherwise than through person approved by Court
(1)
No licensee shall conduct his business as a motor vehicle dealer at any branch office for any period in excess of 14 days otherwise than through the person for the time being approved by the Court.
(2)
A licensee may at any time apply to the Court in the prescribed form for approval of any person for the purposes of subsection (1) of this section.
(3)
A magistrate shall not approve of any person for the purposes of subsection (1) of this section unless the Magistrate is satisfied that the person is eligible to apply for and obtain a licence under this Act in his own right.
(4)
Every licensee who acts in contravention of subsection (1) of this section commits an offence against this Act.
(5)
Notwithstanding the foregoing provisions of this section, the provisions of subsections (6) and (7) of section 20 of this Act, so far as they are applicable and with the necessary modifications, shall apply in respect of applications made under subsection (1) of this section.
22 Voluntary surrender of licence
(1)
A licensee may at any time surrender his licence by forwarding a written notice to that effect, together with the licence, to the Court.
(2)
The Registrar shall endorse on the notice the date on which he receives it, and the licence shall, as from that date, cease to have effect.
(3)
Where a licensee forwards to the Registrar a notice under subsection (1) of this section, the Registrar shall forward a copy of it to the Institute, together with written notice of the date from which the licence ceased to have effect.
(4)
The surrender of a licence under this section shall not affect the licensee’s liability—
(a)
To pay any fees or other money payable or to be payable in accordance with this Act on or before the date on which the licence would, but for its surrender, expire:
(b)
To perform any obligation required to be performed by him by or under this Act on or before that date:
(c)
For any act done or default made before the date on which the licence ceased to have effect.
Compare: 1963, No. 135, s. 24a
23 Temporary licence
(1)
Any person who—
(a)
In the case of a protected patient within the meaning of the Mental Health Act 1969, is the manager of his estate; or
(b)
In the case of a licensee in respect of whom a protection order is in force under the Aged and Infirm Persons Protection Act 1912, is the manager of his estate; or
(c)
In the case of a licensee who is deceased, is his personal representative; or
(d)
In the case of a licensee who has been adjudicated bankrupt, is his assignee in bankruptcy; or
(e)
In the case of a licensee company that is in liquidation or receivership, is the liquidator or receiver of that company, as the case may be,—
may apply to the Court in the prescribed form for authority to carry on or appoint some other person to carry on the licensee’s business as a motor vehicle dealer for such period as the Magistrate determines, and the Magistrate may make such order as he thinks fit.
(2)
While any person carries on any business pursuant to an order made under subsection (1) of this section he shall, for the purposes of this Act, be deemed to be the holder of the licence.
(3)
A copy of every application made under subsection (1) of this section shall be sent by the applicant to the Institute, and the Institute shall be entitled to appear and be heard at the hearing of the application.
(4)
In any case where an order has been made under subsection (1) of this section authorising any person to carry on a licensee’s business, the Institute may at any time apply to the Court for the revocation of the authority on the ground—
(a)
That it is not in the interests of the public for the business to be carried on; or
(b)
That the person carrying on the business has been convicted of an offence against this Act or against any regulations for the time being in force under this Act; or
(c)
That the person carrying on the business has failed to comply with the rules or code of ethics of the Institute.
(5)
A copy of every application made under subsection (4) of this section shall, not later than 10 days before the date fixed for the hearing of the application, be sent to the person to whom the authority was granted, and that person shall be entitled to appear and be heard at the hearing of the application.
(6)
On the hearing of an application under subsection (4) of this section, the Magistrate, if the ground of the objection is proved to his satisfaction, may cancel the authority, and thereupon the person who had been carrying on the business shall no longer be deemed to be the holder of a licence in respect of that business.
(7)
Notwithstanding any of the foregoing provisions of this section, where under subsection (1) of this section a person mentioned in that section has applied to the Court for authority to carry on or to appoint some other person to carry on a licensee’s business and the application has not been determined, the Registrar may, in writing, authorise the applicant to carry on the licensee’s business, either personally or by an agent, for any period not exceeding 2 months, or such longer period as a Magistrate, on application made to him in that behalf, may allow.
(8)
Notwithstanding subsection (7) of this section, an authority given under that subsection shall in any event cease to have effect when the application for the Court’s authority under subsection (1) of this section is determined.
Compare: 1963, No. 135, s. 20
Part II Motor Vehicle Dealers Institute
24 Licensees to be members of Institute
(1)
Every licensee shall be a member of the Institute, whether or not he applies for membership.
(2)
Every member of the Institute who ceases to hold a licence for the time being in force shall thereupon cease to be a member of the Institute, unless he retains his membership in accordance with the rules of the Institute.
(3)
Notwithstanding subsection (1) of this section, such of the officers of a licensee company as the rules of the Institute provide shall be members of the Institute.
(4)
Every member of the Institute shall from time to time pay to the Institute the fees or other payments, annual or otherwise, that are payable in respect of his membership.
(5)
If any fee or other payment payable to the Institute by a member under subsection (4) of this section is not paid within 4 months after it is due, the Council may apply to the Court for the suspension of that licence, and the Magistrate may make an order accordingly.
(6)
While a licence is suspended under subsection (5) of this section, the motor vehicle dealer shall be deemed to be unlicensed.
(7)
If any person whose licence is suspended under this section pays all fees and other payments, the suspension of his licence shall be cancelled by the Court.
25 Conscientious objection to membership of Institute
(1)
Notwithstanding section 24 of this Act, a licensee who has a conscientious objection to being a member of the Institute may apply to the Court for an order exempting him from membership, and the Magistrate may make an order accordingly.
(2)
While any such exemption continues in force, and all conditions relating to the exemption are duly complied with, the person granted the exemption shall be excused from membership of the Institute.
(3)
Every licensee who is for the time being exempted from membership of the Institute shall from time to time pay to the Secretary for Justice the fees or other payments, annual or otherwise, that he would be required to pay to the Institute if he were a member. The Secretary for Justice shall in each year pay to the Institute an amount equal to the total sum received by him under this subsection.
(4)
If any fee or other payment payable to the Secretary for Justice by a licensee under subsection (3) of this section is not paid within 4 months after it is due, the Institute may apply to the Court for an order for the suspension of that licensee, and the Magistrate may make an order accordingly.
(5)
While a licensee is suspended under subsection (4) of this section, he shall be deemed not to be licensed.
(6)
If any person whose licence is suspended under subsection (4) of this section pays all such fees and other payments, the suspension of his licence shall be cancelled by the Court.
(7)
All the provisions of this Act and of the rules and code of ethics of the Institute relating to the discipline of members of the Institute, and all other provisions of those rules and that code that are not inconsistent with the provisions of this section, shall apply with respect to every person exempted from membership of the Institute under this section as if he were a member of the Institute:
Provided that nothing in this subsection shall confer on the Institute any disciplinary powers in respect of any licensee who is for the time being exempt from membership of the Institute under this section.
Compare: 1963, No. 135, s. 32
26 Improper use of words, etc., implying membership of Institute
Every person commits an offence against this Act who, not being a member of the Institute, holds himself out to be a member of the Institute, or uses or causes or permits to be used any written words, titles, or initials, or any abbreviation of any words, titles, or initials, which are intended to cause or may reasonably cause any other person to believe that he is a member of the Institute.
Compare: 1963, No. 135, s. 34
27 Institute to have Motor Cycle Division
(1)
There shall be constituted within the Institute a Division to be called the Motor Cycle Division of the Institute.
(2)
Where in this Act there is a reference to the Institute in relation to any act or thing to be done in respect of a motor cycle dealer, or any manager or salesman employed by a motor cycle dealer, it shall be read as a reference to the Motor Cycle Division of the Institute.
(3)
The affairs of the Motor Cycle Division of the Institute shall be administered and conducted by a Committee to be known as the Motor Cycle Divisional Committee.
28 Institute may contract with Association for provision of services, etc.
The Institute may, whenever the Council considers it desirable to do so, enter into a contract or arrangement with the Association for the execution or provision by the Association for the Institute of any work or service, or for the supply to the Institute of any goods, stores, or equipment, upon and subject to such terms and conditions as may be agreed upon.
29 Rules of Institute
(1)
The Institute may from time to time make rules (not inconsistent with this Act or any regulations made under this Act) for all or any of the following purposes:
(a)
The regulation and good government of the Institute, its members, and affairs:
(b)
Prescribing the qualifications for membership of the Institute, and for different classes of members:
(c)
The constitution, election, and tenure of office of the Council, and the filling of extraordinary vacancies thereon:
(d)
The constitution, election, and tenure of office of the Motor Cycle Divisional Committee, and the filling of extraordinary vacancies thereon:
(e)
Regulating the election of the President and the Vice-Presidents of the Institute, and the filling of extraordinary vacancies in those offices:
(f)
Providing for the constitution of branches of the Institute:
(g)
Regulating the audit of the accounts of the Institute and the appointment of auditors, and prescribing their qualifications:
(h)
Providing for and regulating the granting of certificates of membership:
(i)
Providing for the convening of ordinary and special meetings of the Institute, the Council, and the Motor Cycle Division of the Institute, and regulating the quorum, the representation of members, and the procedure thereat:
(j)
Providing for the conferring of fellowships, honorary memberships, and other distinctions:
(k)
Prescribing the fees or other payments, annual or other wise, to be paid by members of the Institute:
(l)
Prescribing a code of ethics for regulating the services that members of the Institute render to the public:
(m)
Imposing penalties not exceeding $50 upon any member of the Institute for the breach of any rule of the Institute:
(n)
Generally for carrying into full effect the objects for which the Institute is formed.
(2)
Any fine imposed upon any member under any rule shall be deemed to be a debt due from the member to the Institute, and shall be recoverable accordingly.
(3)
The power to make rules conferred on the Institute by this section is in addition to the power conferred elsewhere in this Act.
Compare: 1963, No. 135, s. 35
Part III Motor Vehicle Dealers Fidelity Guarantee Fund
30 Motor Vehicle Dealers Fidelity Guarantee Fund
(1)
There is hereby established a fund to be known as the Motor Vehicle Dealers Fidelity Guarantee Fund.
(2)
The Fund shall be the property of the Institute, and shall be held in trust for the purposes specified in this Part of this Act.
(3)
The Fund shall consist of—
(a)
All sums paid to or on account of the Fund by motor vehicle dealers, either as annual subscriptions or as levies, in accordance with the provisions of this Act in that behalf:
(b)
The interest from time to time accruing from the investment of the Fund in accordance with section 38 of this Act:
(c)
All money recovered by or on behalf of the Institute in the exercise of any right of action conferred by this Part of this Act:
(d)
Any other money that may be lawfully paid into the Fund.
(4)
All money belonging to the Fund shall, pending the investment or application thereof in accordance with this Part of this Act, be paid into a bank to the credit of a separate account to be called the Motor Vehicle Dealers Fidelity Guarantee Fund Account.
Compare: 1963, No. 135, ss. 37, 38, 39
31 Expenditure from Fund
(1)
There shall from time to time be paid out of the Fund, as required—
(a)
The amount of all claims, including costs, allowed or established against the Fund in accordance with this Act:
(b)
All legal expenses incurred in defending claims made against the Fund, or otherwise incurred in relation to the Fund:
(c)
All premiums payable in respect of contracts of insurance entered into by the Council under section 44 of this Act:
(d)
The expenses involved in the administration of the Fund, including allowances to members of the Council and to members or officers of the Institute in respect of their services, and their reasonable travelling expenses incurred in connection with the management of the Fund:
(e)
All other money payable in respect of any matter for which payment is required or deemed necessary by the Council for the purposes of this Part of this Act or the rules made thereunder, including the cost of investigations directed by the Council.
(2)
While the amount of the Fund exceeds $250,000, the income derived from the investment, in accordance with section 38 of this Act, of any money that is in the Fund may be expended by the Council in or towards meeting the costs involved in—
(a)
The provision of educational programmes and other facilities for the purpose of improving the efficiency and promoting the welfare of motor vehicle dealers:
(b)
The administration by the Institute of the provisions of this Act, and the conduct of the affairs of the Institute to such extent and in accordance with such conditions (if any) as the Council from time to time determines.
Compare: 1963, No. 135, s. 40
32 Audit of accounts
The accounts of the Fund shall be audited by a member of the New Zealand Society of Accountants appointed for the purpose by the Council.
Compare: 1963, No. 135, s. 41
33 Council to administer Fund
(1)
Subject to the provisions of section 34 of this Act, the Fund shall be administered on behalf of the Institute by the Council, together with a barrister or solicitor of the Supreme Court to be appointed for that purpose by the Council and to hold office during the pleasure of the Council.
(2)
For the purposes of this Part of this Act, the barrister or solicitor so appointed shall be deemed to be a member of the Council.
(3)
For the purposes of this Part of this Act, the quorum for meetings of the Council shall be the number of members specified in the rules of the Institute, together with the barrister or solicitor appointed under this section.
Compare: 1963, No. 135, s. 42
34 Committee of management
(1)
The Council may, by resolution, delegate its powers in relation to the Fund, or any of those powers, to a committee of management consisting of not less than 3 and not more than 6 members of the Council, together with the barrister or solicitor who is a member of the Council under section 33 of this Act.
(2)
Any such resolution may at any time be varied or revoked.
(3)
Where the Council has delegated any of its powers to a committee of management under this section, every reference in this Part of this Act to the Council shall, in relation to those powers, be deemed to include a reference to the committee of management.
Compare: 1963, No. 135, s. 43
35 Motor vehicle dealers to contribute to Fund
(1)
Subject to section 36 of this Act, every motor vehicle dealer, on making application in any year for a licence or the renewal of a licence, shall pay to the Council the following sum:
(a)
On application for the issue of a licence, the sum of $100:
(b)
On application for the renewal of a licence, the sum of $10:
Provided that no sum shall be payable by a licensee in respect of the first and second renewals of his licence.
(2)
Notwithstanding subsection (1) of this section, where any motor vehicle dealer has applied to be or has been exempted from membership of the Institute under section 25 of this Act, it will be sufficient compliance with subsection (1) of this section if he pays all sums payable by him under that section to the Secretary for Justice. The Secretary for Justice in each year shall pay to the Institute an amount equal to the total sum received by him under this subsection.
(3)
Where any motor vehicle dealer who for any year has paid the amount prescribed by this section remains in business as such for less than 3 months in that year, the Council may, out of the money received by it under subsection (1) of this section, refund to the motor vehicle dealer such portion of the amount paid as it thinks fit.
(4)
If any motor vehicle dealer commences business as such during the last 3 months of any year for which the amount prescribed by this section is payable, the Council may accept, in full satisfaction of the contribution for that year, such portion of the contribution as it thinks fit.
(5)
The person receiving any amounts paid to the Council under this section shall forthwith pay them into the Fund.
Compare: 1963, No. 112, s. 44
36 Contributions to Fund while it exceeds specified amount
While the amount of the Fund (including any investments thereof, and after deducting the amount of all unpaid claims and other liabilities outstanding against the Fund) exceeds $250,000, the amount payable by motor vehicle dealers under paragraph (b) of subsection (1) of section 35 of this Act shall, from a date fixed by resolution of the Council, be reduced to $1.
Compare: 1963, No. 135, s. 45
37 Motor vehicle dealer may be required to pay levy
(1)
If at any time the Fund is not sufficient to satisfy the liabilities of the Institute in relation thereto, the Council may, by resolution, impose on every licensed motor vehicle dealer, for payment into the Fund, a levy of such amount as it thinks fit, not exceeding $30.
(2)
Notwithstanding subsection (1) of this section, no motor vehicle dealer shall be required, during the whole period while he is carrying on business as a motor vehicle dealer, to pay by way of levy under this section a total sum exceeding $150.
(3)
The amount of every such levy shall become payable on a date and in a manner fixed by the Council, and, if not paid earlier, shall be paid together with the next annual fee payable to the Fund under section 35 of this Act.
Compare: 1963, No. 135, s. 46
38 Investment of Fund
Any money in the Fund that is not immediately required for the purposes thereof may be invested in any manner in which trustees are for the time being authorised to invest trust funds:
Provided that the Council shall at all times retain in the Fund at call at least $100,000.
Compare: 1963, No. 135, s. 47
39 Application of Fund
Subject to the provisions of this Part of this Act, the Fund shall be held and applied for the purpose of reimbursing any person who has suffered loss by reason of—
(a)
Any cheque drawn by a licensee in payment or part-payment for a motor vehicle having been dishonoured on presentation:
(b)
The breach by a licensee of section 59 or section 60 of this Act, relating to the duties of a licensee to account for money received by him as an agent:
(c)
The breach by a licensee of the term implied in contracts of sale of motor vehicles by section 89 of this Act:
(d)
The failure of a licensee to carry out any obligation imposed on him by section 93 of this Act, relating to the repair or making good of defects:
(e)
A motor vehicle as sold by a licensee being substantially different from the vehicle as represented in the notice attached to it in accordance with section 90 of this Act.
Compare: 1963, No. 135, s. 48
40 Claims against Fund
(1)
Subject to the provisions of this section, the Council may receive and settle any claim against the Fund at any time after the cause of the claim has arisen.
(2)
No person shall be entitled to make a claim against the Fund—
(a)
In respect of any act or thing done or omitted to be done before the commencement of this Part of this Act; or
(b)
Except with leave of the Council, in respect of any act or thing done or omitted to be done after the commencement of this Part of this Act unless written notice of the claim is given to the Council—
(i)
In respect of a claim under paragraph (a) of section 39 of this Act, within 3 months after the cheque is dishonoured:
(ii)
In respect of a claim under paragraph (b) of that section, within 3 months after lawful demand for the money has been made and the licensee has failed to account:
(iii)
In respect of a claim under any of paragraphs (c) to (e) of that section, within 3 months after the date of the determination of the Disputes Tribunal given in respect of the subject-matter of the claim.
(3)
A person shall be entitled to make a claim against the Fund notwithstanding that he is entitled to any other right or remedy in respect of the same cause:
Provided that no person shall be entitled to make a claim against the Fund under any of the provisions of paragraphs (c) to (e) of section 39 of this Act except in respect of any loss found to have been suffered by him by a Disputes Tribunal acting under any of the provisions of sections 100 to 103 of this Act, or, where an appeal has been brought against the Disputes Tribunal’s decision, by the Court hearing the appeal.
(4)
No finance company shall be entitled to make a claim against the Fund under paragraph (d) or paragraph (e) of section 39 of this Act in respect of any loss suffered by it in the ordinary course of its business as a finance company.
(5)
No person shall be entitled to recover from the Fund an amount greater than the balance of the loss suffered by him after deducting from the total amount of his loss the amount or value of all money or other benefits received by him from any source other than the Fund in reduction of his loss, including any benefits received by reason of services rendered or payments made by the defaulting motor vehicle dealer or other person.
(6)
Where a claim against the Fund is admitted by the Council, there shall be payable out of the Fund interest on the amount of the claim so admitted from the date on which the claim was received by the Council until the date on which the amount of the claim is paid to the claimant at the rate for the time being payable in respect of judgments entered in the Supreme Court.
Compare: 1963, No. 135, s. 49
41 Defences to claims against Fund
In any action brought against the Institute in relation to the Fund, all defences that would have been available to the defaulting motor vehicle dealer shall be available to the Institute.
Compare: 1963, No. 135, s. 50
42 Subrogation of rights of action against defaulting motor vehicle dealers
(1)
On payment out of the Fund of any money in settlement in whole or in part of any claim under this Part of this Act, the Institute shall be subrogated, to the extent of that payment, to all rights and remedies of the claimant against the motor vehicle dealer in relation to whom the claim arose, or in the event of the death or insolvency or other disability of the motor vehicle dealer, against his personal representatives or other persons having authority to administer his estate, and to all other rights and remedies whatsoever of the claimant in respect of the act or thing done or omitted to be done to which the claim relates.
(2)
Notwithstanding anything to the contrary in the Companies Act 1955 or in any other Act or in any rule of law, if a claim is made against the Fund in respect of any act or thing done or omitted to be done by an officer, employee, or agent of a licensee company, a Magistrate may, if he thinks fit, on the application of the Institute, declare that any person who was knowingly a party to the act or omission shall be personally responsible, without any limitation of liability, for the repayment to the Fund of the amount paid from the Fund in settlement of the claim.
(3)
Notwithstanding anything in the Companies Act 1955 or any other Act or in any rule of law, all sums that the Institute is entitled to recover from a defaulting licensee company under this section shall, in the event of the winding-up of the company, be paid in priority to all other debts in accordance with paragraph (d) of subsection (1) of section 308 of the Companies Act 1955, and the provisions of that section and of section 101 of that Act shall apply accordingly.
Compare: 1963, No. 135, s. 51
43 Provisions applicable if Fund insufficient to satisfy claims
(1)
No money or other property belonging to the Institute (other than the Fund) shall be available for the satisfaction of any judgment obtained against the Institute in relation to the Fund, or for the payment of any claim allowed by the Council, but if at any time the Fund is not sufficient to provide for the satisfaction of all such judgments and claims they shall, to the extent to which they are not so satisfied, be charged against future accumulations of the Fund.
(2)
The Council may, having regard to the rules set out in subsection (3) of this section, determine the order in which judgments and claims charged against the Fund shall be satisfied, and may, if the amount accumulated is not sufficient to satisfy all such judgments and claims in full, satisfy any such judgments or claims in whole or in part.
(3)
Without limiting the discretion of the Council, it shall, in applying the Fund towards the settlement of any such judgments and claims as aforesaid, have regard to the following rules:
(a)
It shall take into consideration the relative degree of hardship suffered or likely to be suffered by the several claimants in the event of their claims against the Fund not being satisfied in whole or in part:
(b)
Claims for amounts not exceeding $1,000 shall, except in special circumstances, be satisfied in full before claims for amounts exceeding $1,000 are satisfied to a greater extent than $1,000:
(c)
Where all other considerations are equal, claimants shall have priority as between themselves according to the dates of the judgments or the dates when the claims were received by the Council, as the case may require.
Compare: 1963, No. 135, s. 52
44 Council may enter into contracts of insurance
(1)
Notwithstanding any of the foregoing provisions of this Part of this Act, the Council may, in its discretion, enter into any contract of insurance with any person carrying on fidelity insurance business in New Zealand, whereby the Institute will be indemnified to the extent and in the manner provided by the contract against liability to pay claims under this Part of this Act.
(2)
Any such contract may be entered into in relation to licensed motor vehicle dealers generally, or in relation to any licensed motor vehicle dealer or dealers named therein.
(3)
No action shall lie against the Institute, or against any member or servant of the Institute, or against any member or servant of the Council, for injury alleged to have been suffered by any motor vehicle dealer by reason of the publication in accordance with fact of a statement that any contract of insurance entered into under this section does or does not apply to that motor vehicle dealer:
Provided that, in the event of any contract of insurance being entered into in respect of any specified motor vehicle dealer or dealers, the Council shall, on the application of any other motor vehicle dealer, enter into a like contract of insurance in respect of the last-mentioned motor vehicle dealer if the insurer signifies his or its willingness to enter into such a contract on like terms and conditions.
Compare: 1963, No. 135, s. 53
45 Application of insurance money
(1)
All money paid to the Institute in accordance with any contract of insurance entered into by the Council under section 44 of this Act shall be paid into the Fund, and shall be applied in or towards the settlement of relevant claims.
(2)
No claimant against the Fund shall have any right of action against any person with whom any such contract of insurance was entered into, or have any right to claim any money paid by that person in accordance with the contract.
Compare: 1963, No. 135, s. 54
46 Council may take possession of and inspect licensee’s books and documents
(1)
This section applies in any case where the Council is satisfied, in respect of any licensee,—
(a)
That there is reasonable cause to believe that he, or, in the case of a licensee company, any officer, has done or omitted to do any act or thing, in respect of which act or omission a claim may be made against the Fund; or
(b)
That he has died; or
(c)
That he has been adjudicated bankrupt; or
(d)
That, being a licensee company, it is being wound up, whether voluntarily or by order of the Court; or
(e)
That his or its licence has been cancelled.
(2)
In any case to which this section applies, the Council may, if it considers it is expedient to do so, apply to the Court for an order authorising it to take possession of and inspect any ledgers, books of account, records, deeds, or other documents belonging to the licensee, or held in the course of his business as a motor vehicle dealer in his possession or under his control, or, in the case of a licensee company, in the possession or under the control of any officer or employee of the company; and in any such case the Magistrate may make such order as he thinks fit, or may refuse to make an order.
Compare: 1963, No. 135, s. 56
47 Further power to take possession of and inspect licensee’s books
(1)
If the Council has reason to believe that any licensee has failed to comply with section 59 or section 60 of this Act in respect of any money received by him or on his behalf in the course of his business as a motor vehicle dealer, the Council may, if it considers it is expedient to do so, apply to the Court for an order authorising it to take possession of and inspect any ledgers, books of account, passbooks, bank statements, cheques, or other records relating to any money received by him or on his behalf in the course of his business as a motor vehicle dealer, whether the money has been paid into a private or a trust account at a bank or not; and in any such case the Magistrate may make such order as he thinks fit, or may refuse to make an order.
(2)
The power conferred on the Council by subsection (1) of this section is in addition to the power conferred on it by subsection (2) of section 46 of this Act.
Compare: 1963, No. 135, s. 57
48 Council to give receipt for document taken into possession
(1)
Upon taking possession of any document under section 46 or section 47 of this Act, the Council shall forthwith serve upon the licensee concerned a notice giving particulars of the document and the date on which it was taken into the Council’s possession.
(2)
If any such document is the property of a firm of motor vehicle dealers in which the licensee is a partner, a copy of the notice shall be served on each partner in the firm.
(3)
Within 14 days after any such notice has been served, the licensee, or any of his partners, may apply to the Court for an order directing the Institute to return any document specified in the order to the person from whom it was received, or for such other order as the Magistrate may think fit.
Compare: 1963, No. 135, s. 56(4), (7)
49 Expenses of Council in investigating affairs of motor vehicle dealer
The reasonable expenses of the Council acting in the exercise of any of the powers conferred on it by sections 46 and 47 of this Act in respect of any licensee shall be recoverable from that licensee.
Compare: 1963, No. 135, s. 58
50 Appointment of authorised person to investigate affairs of motor vehicle dealers
(1)
For the purpose of safeguarding the Fund, the Council may at any time appoint a member of the New Zealand Society of Accountants to examine the accounts of licensees, and to furnish to it a confidential report of any irregularity in the accounts of any licensee or firm of licensees that may be disclosed by the examination, or as to any other matter that in the opinion of the person so appointed should, in the interests of the Fund, be further investigated.
(2)
Every appointment under this section shall be in writing and shall be signed on behalf of the Council by the Chairman or any 2 members of the Council.
(3)
Upon production by any person so appointed of his letter of appointment he shall be entitled, in respect of any licensee or firm of licensees, to exercise any of the powers conferred upon the Council by sections 46 and 47 of this Act:
Provided that he shall not exercise any of the powers conferred by either of those sections except pursuant to a resolution of the Council passed in relation to any specified licensee or firm of licensees.
(4)
The person so appointed to make any examination of accounts for the purposes of this section shall not, otherwise than in the course of his report to the Council, communicate to any person any matter that may come to his knowledge in the course of his examination.
(5)
The Council shall consider the report in committee, but may disclose the contents to any member of the Police, or to the Council of the New Zealand Society of Accountants.
(6)
No member or officer of the Council shall communicate to any person any information disclosed in the report, except in the performance of his duty.
Compare: 1963, No. 135, s. 59
51 Offence not to produce books, etc.
Every person commits an offence against this Act who, having been required under any of the provisions of sections 46, 47, and 50 of this Act to produce any document, or to give any information relating to any document, without lawful excuse refuses or fails to do so, or unnecessarily delays in doing so.
52 Acts or omissions of manager, salesman, employee, or agent deemed to be acts or omissions of licensee
For the purposes of this Part of this Act, any act or thing done or omitted to be done, or suspected of having been done or omitted to be done, by any manager employed by a licensee in respect of any of his branch offices, or by any salesman or other employee or agent of the licensee, not constituting an offence against any of the provisions of this Part of this Act, shall be deemed to have been done or omitted to be done, or to be suspected of having been done or omitted to be done, by the licensee.
53 Rules for purposes of this Part of this Act
For the purposes of this Part of this Act, the Council may from time to time make rules for all or any of the following purposes:
(a)
Providing for the investment of so much of the Fund as is not immediately required for the purposes thereof:
(b)
Prescribing the forms of notices to be given to the Council in relation to claims against the Fund, and the conditions subject to which and the extent to which the Council may settle any such claims without recourse being had to legal proceedings:
(c)
Prescribing the duties of an accountant appointed to conduct an examination of any accounts under section 50 of this Act; and prescribing also the corresponding duties of the licensee concerned, or, in the case of a licensee company, the duties of the officers and employees of the company, and the circumstances in which that licensee may be required to pay the cost of the examination:
(d)
Generally, for such other matters as may be considered necessary for the purpose of protecting the Fund, or of giving full effect to the intent of this Part of this Act.
Compare: 1963, No. 135, s. 60
Part IV Duties of Motor Vehicle Dealers
54 Licensee to conduct business at principal place of business, branch office, or subsidiary place of business only
(1)
No licensee shall carry on business as a motor vehicle dealer at any place of business other than his principal place of business, a branch office, or a subsidiary place of business.
(2)
Every licensee who carries on business as a motor vehicle dealer in contravention of subsection (1) of this section commits an offence against this Act.
(3)
Nothing in this section shall limit or affect the right of a licensee, in the ordinary course of his business as a motor vehicle dealer, to engage or make use of the services of an auctioneer or a car-fair operator, or to sell any motor vehicle at any agricultural and pastoral show, trade fair, or other agricultural, industrial, or commercial exhibition held wholly or partly for trade purposes.
55 Licensee to display notice on place of business, etc.
(1)
Every licensee shall exhibit and keep exhibited in a prominent place at each of his places of business, so as to be read easily from outside the place of business, a notice of the name or style under which he carries on business as a motor vehicle dealer (being the name or style approved by the Court under section 16 of this Act), and of the fact that he is a licensed motor vehicle dealer.
(2)
The information referred to in subsection (1) of this section shall also be clearly shown on all notices, advertisements, and other publications issued by or on behalf of the licensee, and in all letters, accounts, agreements, and other documents sent out, entered into, or published by or on behalf of him in the course of or in connection with his business as a motor vehicle dealer.
(3)
It shall be deemed a sufficient compliance with the provisions of this section requiring a licensee to exhibit at any place or to show on any document the fact that he is a licensed motor vehicle dealer if he exhibits at that place or shows on that document the letters “L.M.V.D.”
.
(4)
Every licensee who fails to comply with subsection (1) or subsection (2) of this section commits an offence against this Act.
Compare: 1958, No. 112, s. 23
56 Licensee to have registered office
(1)
Every licensee shall have a registered office.
(2)
Subject to subsection (3) of this section, the registered office shall be at the licensee’s principal place of business.
(3)
A licensee may at any time, by notice in writing filed in the Court, change the address of his registered office to that of any of his branch offices.
Compare: 1963, No. 135, s. 25
57 Supervision of licensee’s business
Every licensee shall personally supervise, manage, and control the conduct of his business as a motor vehicle dealer at his principal place of business and at each subsidiary place of business named in the licence relating to his principal place of business.
58 Employment of salesmen
(1)
No licensee shall, without the approval of the Court given under Part VI of this Act, employ as a salesman any person who is not a registered salesman.
(2)
Every licensee shall keep in the prescribed form a list of salesmen currently employed by him.
(3)
Every list required to be kept under subsection (2) of this section shall be open to inspection at all reasonable times by the Institute, and any member of the Police.
(4)
Every licensee commits an offence against this Act who—
(a)
Wilfully employs any person in contravention of subsection (1) of this section; or
(b)
Fails to keep a list of salesmen in accordance with subsection (2) of this section; or
(c)
Refuses or fails to produce the list on demand by the Institute, or by any member of the Police.
59 Duties of licensees with respect to money received in course of business
(1)
Subject to any authority or instruction given to the licensee by the person (in this section referred to as the principal) on whose behalf he is acting or has acted, all money received by a licensee in respect of any transaction in his capacity as a dealer on behalf of the principal (less any fee, commission, or other charge for the licensee’s services previously agreed upon by the licensee and the principal) shall be paid by the licensee to the principal forthwith on demand by the principal or, if no such demand is made, within a period of 7 days after the receipt of the money:
Provided that where, after reasonable inquiry, the principal cannot be found within that period, the licensee shall pay the money to the principal as soon as he becomes aware of the principal’s whereabouts.
(2)
No money to which this section applies shall be available for payment of the licensee’s debts, nor shall it be liable to be attached or taken in execution under the order or process of any Court at the instance of any of the licensee’s creditors.
(3)
Where any licensee, in his capacity as a dealer and on behalf of any person, sells any motor vehicle and the purchase price or part thereof is satisfied by the trading-in of another motor vehicle, the purchase price, or, as the case may require, so much of the purchase price as is satisfied in that manner, shall, for the purposes of subsection (1) of this section, be deemed to have been received by the licensee in money.
(4)
Every licensee who contravenes or fails to comply with any of the provisions of this section commits an offence and is liable on summary conviction to a fine not exceeding $2,000.
Compare: 1958, No. 112, s. 19
60 Licensee to furnish account to principal
(1)
Where a licensee purchases, sells, exchanges, or leases any motor vehicle on behalf of a principal, he shall forthwith on demand by the principal, or, if no such demand is made, then within 7 days after the completion of the transaction, render to the principal a written account setting out particulars of all money received by him on the principal’s behalf in respect of the transaction, and of the manner in which the licensee has applied any such money.
(2)
For the purposes of this section, the completion of a transaction shall be deemed not to be dependent on the vendor of the motor vehicle giving to a Deputy Registrar of Motor Vehicles notice of change of ownership in accordance with the provisions of section 18 of the Transport Act 1962.
(3)
Every licensee who fails to comply with subsection (1) of this section commits an offence and is liable on summary conviction to a fine not exceeding $2,000.
Compare: 1958, No. 112, s. 20
61 Licensee to keep record of transactions
(1)
Every licensee shall keep or cause to be kept in the prescribed form a record of—
(a)
Every motor vehicle that, in the course of his business as a motor vehicle dealer, he purchases, or accepts for the purpose of selling, exchanging, or leasing; and
(b)
Every transaction in which he has acted as a dealer in relation to any motor vehicle.
(2)
Every licensee shall keep the record required to be kept by subsection (1) of this section for a period of not less than 6 years after the making of that record, or after the making of the last entry in any book containing more than 1 such record.
(3)
Every record required to be kept under this section, and every book containing more than 1 such record, shall be open to inspection at all reasonable times by any member of the Police, who may make such copies thereof as he thinks fit.
(4)
Every person commits an offence against this Act who—
(a)
Being a licensee, fails to keep any record required by this section to be kept by him; or
(b)
Refuses or fails to produce to any member of the Police demanding the same any record or book of records required for inspection under this section and in his possession, custody, or control.
Compare: 1958, No. 112, s. 21
62 Licensee to produce licence
(1)
Every licensee shall produce his licence for inspection whenever required to do so by the Institute, or by any member of the Police, and shall also keep displayed in a prominent place in his principal place of business and in each branch office a copy of the relevant licence.
(2)
Every licensee who fails to comply with subsection (1) of this section commits an offence against this Act.
Compare: 1958, No. 112, s. 22
Part V Registration of Salesmen
63 Motor Vehicle Salesmen Registration Board
(1)
For the purposes of this Part of this Act there shall be established within the Institute a Board, to be known as the Motor Vehicle Salesmen Registration Board.
(2)
The Board shall consist of—
(a)
A Chairman (who shall not be a member of the Institute) to be appointed by the Minister; and
(b)
Three members of the Institute to be appointed by the Minister on the recommendation of the Institute; and
(c)
One registered salesman to be appointed by the Minister.
(3)
Every person appointed to the Board shall, unless he sooner resigns by notice in writing to the Secretary, hold office for a term of 3 years, and may from time to time be reappointed.
(4)
Notwithstanding subsection (3) of this section, any member of the Board may be removed from office at any time by the Minister on the recommendation of the Institute for disability, neglect of duty, or misconduct proved to the satisfaction of the Institute.
(5)
The powers of the Board shall not be affected by any vacancy in its membership.
Compare: 1948, No. 63, s. 3
64 Functions of Board
The functions of the Board shall be—
(a)
To hear and determine, in accordance with section 70 of this Act, applications for registration as a salesman:
(b)
To hear and determine, in accordance with section 116 of this Act, complaints against any registered salesman:
(c)
To advise the Institute on any matter relating to the registration of salesmen under this Act that may be referred to it from time to time by the Institute.
65 Secretary of Board
(1)
For the purposes of this Part of this Act the Institute shall appoint a suitable person to be the Secretary of the Board.
(2)
The Institute may pay to the Secretary, out of the funds of the Institute, such salary, fees, and allowances as it from time to time thinks fit.
Compare: 1948, No. 63, s. 8
66 Eligibility for registration as a salesman
(1)
Subject to the other provisions of this Part of this Act, every person who—
(a)
Has attained the age of 18 years; and
(b)
Has passed the examination prescribed by the rules of the Institute to be passed by persons intending to apply for registration as a motor vehicle salesman; and
(c)
Has had not less than 1 year’s experience as a motor vehicle salesman; and
(d)
Satisfies the Board that he is a proper person to be registered as a motor vehicle salesman,—
shall be eligible to apply to be and be registered as a motor vehicle salesman.
(2)
Notwithstanding subsection (1) of this section, every person who—
(a)
Is employed as a motor vehicle salesman by a licensed motor vehicle dealer at the commencement of this Part of this Act; and
(b)
Meets the requirements of paragraphs (a), (c), and (d) of that subsection; and
(c)
Applies to be registered as a motor vehicle salesman in accordance with this Act within 12 months after the commencement of this Part of this Act,—
shall be eligible to be registered as a motor vehicle salesman.
(3)
Notwithstanding the foregoing provisions of this section, no person shall apply to be or be registered as a motor vehicle salesman under this Part of this Act if—
(a)
At any time within the preceding period of 1 year his registration as a motor vehicle salesman has been cancelled under section 116 of this Act; or
(b)
At any time within the preceding period of 1 year an application by him for registration as a motor vehicle salesman under this Part of this Act has been refused.
(4)
Every person who applies or allows himself to be registered in contravention of this section commits an offence and is liable on summary conviction to a fine not exceeding $1,000.
Compare: 1948, No. 63, s. 19
67 Application for registration
(1)
Every person who desires to be registered as a motor vehicle salesman under this Part of this Act shall make application to the Board in writing.
(2)
Every application shall be made in the prescribed form (if any), and shall be accompanied by the prescribed fee (if any), and by such other particulars as may be required by or under any rules made in that behalf by the Institute under section 80 of this Act.
Compare: 1948, No. 63, s. 21
68 Public notice to be given
(1)
Every applicant for registration under this Part of this Act shall cause a notice of the application, in the prescribed form, to be published twice, at an interval of not more than 14 days, in a newspaper or newspapers approved for the purpose by the Secretary.
(2)
Any person may, within 1 month after the date of the first publication of the notice, file with the Secretary a notice of his desire to object to the registration of the applicant.
(3)
No objection may be made under subsection (2) of this section except on the following grounds:
(a)
That by virtue of section 66 of this Act the applicant is not eligible to be registered under this Part of this Act:
(b)
That by reason of his personal character and fitness, the applicant is not a proper person to be registered under this Part of this Act.
(4)
Every notice of objection filed under subsection (2) of this section shall state each ground on which the objection is made.
(5)
The person filing the notice of objection shall cause a copy of the notice to be served on the applicant within 7 days after it is filed with the Secretary.
69 Board not to hear or consider application until satisfied of certain matters
(1)
The Board shall not hear or consider an application for registration under this Part of this Act until it is satisfied that the applicant has—
(a)
Published a notice of his application in accordance with subsection (1) of section 68 of this Act; and
(b)
Paid to the Institute all fees required to be paid under the rules of the Institute.
(2)
Notwithstanding subsection (1) of this section, no application for registration under this Part of this Act shall be heard or considered by the Board before the expiry of 1 month after the applicant has complied with subsection (1)of section 68 of this Act.
70 Hearing of application
(1)
Subject to subsection (2) of section 69 of this Act, as soon as practicable after the receipt of an application for registration under this Part of this Act the Board shall hear and consider the application, and shall give to the Secretary such directions in respect of the application as it thinks fit and as are authorised by section 71 of this Act.
(2)
The applicant, and every person who has filed a notice of objection in respect of the application in accordance with subsection (2) of section 68 of this Act, shall be entitled to appear and be heard in respect of the application.
(3)
For the purposes of this section,—
(a)
The Board may, if it thinks fit, examine, on oath or otherwise, the applicant or any other person in respect of the application, or require any person to verify by statutory declaration any statement made by him with respect to the application:
(b)
The Chairman may administer an oath to any person.
Compare: 1948, No. 63, s. 22
71 Board to give directions in respect of application
(1)
If, after hearing and considering an application for registration under this Part of this Act, the Board is of the opinion that the applicant is entitled to be registered, it shall direct the Secretary to register the applicant, and to notify him accordingly.
(2)
If, in any case, the Board is not so satisfied, it shall direct the Secretary not to register the applicant, and to notify him accordingly.
Compare: 1948, No. 63, s. 24
72 Mode of registration
(1)
Registration under this Part of this Act shall be effected by the entry in the Register of Motor Vehicle Salesmen, set up and maintained under section 73 of this Act, of the name and address of the applicant, of the qualifications by virtue of which he is entitled to be registered, and of such other matters as may from time to time be prescribed by regulations made under this Act, or by rules made by the Institute under section 80 of this Act.
(2)
No entry in the Register of the name of any person shall be made otherwise than by the Secretary acting pursuant to a written direction of the Board given under section 71 of this Act.
73 Register of Motor Vehicle Salesmen
(1)
For the purposes of this Part of this Act there shall be set up and maintained by the Secretary a Register of Motor Vehicle Salesmen.
(2)
The Register shall be open to inspection by the public during ordinary office hours on payment of the prescribed fee (if any).
(3)
On payment to him of the prescribed fee, the Secretary shall send to any person requesting the same in writing a copy of any specified entry in the Register.
Compare: 1948, No. 63, s. 18
74 Penalty for wrongfully procuring registration
Every person commits an offence against this Act who wilfully makes or causes to be made any false entry in or falsification of the Register, or procures or attempts to procure himself or any other person to be registered under this Part of this Act by making or producing or causing to be made or produced any false or fraudulent representation or declaration, whether verbally or in writing.
Compare: 1948, No. 63 s. 26
75 Correction of Register
(1)
If any person has been registered under this Part of this Act by reason of any false or fraudulent representation or declaration, or if any person not entitled to be registered under this Part of this Act has been so registered, the Board shall direct the Secretary to remove the name of that person from the Register.
(2)
If any particulars appearing in the Register in respect of the qualifications of any registered salesman are proved to the satisfaction of the Board to be false or erroneous in any respect, the Board shall direct the Secretary to remove those particulars from the Register, or otherwise to amend the Register.
(3)
Subsection (2) of this section shall apply notwithstanding that at the time when the entry in the Register was made the salesman was actually possessed of the qualifications particulars of which appear in the Register, or that at the time the entry was otherwise correct.
Compare: 1948, No. 63, s. 28
76 Name of registered salesman to be removed from Register if whereabouts unknown
(1)
Whenever the Board so directs, the Secretary shall send to a registered salesman, by registered letter addressed to him at the address appearing on the Register, an inquiry as to whether or not he desires to have his name retained on the Register.
(2)
If no reply is received to that letter within 3 months after the posting thereof, or if the letter is not delivered and is returned to the Secretary, the Secretary shall, if the Board so directs, remove from the Register the name of the salesman concerned.
(3)
Any person whose name has been removed from the Register under this section may apply to the Board to have his name restored to the Register, and the Board may, on payment by the applicant of the prescribed fee (if any), direct the Secretary to restore the applicant’s name to the Register accordingly.
Compare: 1948, No. 63, s. 27
77 Voluntary removal of name from Register
(1)
A registered salesman may at any time notify the Board in writing that he desires to have his name removed from the Register.
(2)
On receipt by the Board of a notice under subsection (1) of this section, the Board shall direct the Secretary to remove the name of the registered salesman concerned from the Register.
(3)
Any person whose name is removed from the Register under subsection (2) of this section may apply to the Board to have his name restored to the Register, and the Board, on payment by the applicant of the prescribed fee (if any), may direct the Secretary to restore the applicant’s name to the Register accordingly.
Compare: 1948, No. 63, s. 29
78 Secretary to carry out directions by Board
The Secretary shall forthwith carry out any direction lawfully given to him by the Board under the foregoing provisions of this Part of this Act.
79 Certificate of registration, etc.
(1)
The Secretary shall, on application in that behalf made to him at any time by a registered salesman, and on payment of the prescribed fee, issue to the salesman a certificate of registration.
(2)
Every registered salesman shall produce his certificate of registration for inspection on demand by any member of the Police or by any person with whom he is dealing in the course of transacting or attempting to transact business as a motor vehicle salesman. Every registered salesman who wilfully contravenes the requirements of this section commits an offence against this Act.
(3)
A statement in writing under the hand of the Secretary—
(a)
To the effect that any specified person is or is not registered as a motor vehicle salesman, or was or was not so registered at any particular time or during any specified period; or
(b)
As to any entry in the Register—
shall in any judicial proceedings be sufficient evidence, until the contrary is proved, of the matters referred to in the statement.
Compare: 1948, No. 63, s. 25
80 Council may make rules for purposes of this Part of this Act
(1)
Subject to the provisions of this Part of this Act, the Council may make rules for any of the purposes of this Part of this Act.
(2)
Without limiting the generality of subsection (1) of this section, the Council may make rules under that subsection in respect of all or any of the following matters:
(a)
The manner in which members of the Institute are to be selected for appointment to the Board:
(b)
The appointment of a deputy to act for a member of the Board during that member’s absence or incapacity:
(c)
When meetings of the Board are to be held, and the persons who are to be entitled to call such a meeting:
(d)
The quorum necessary for the conduct of any business at a meeting of the Board:
(e)
The procedure to be followed at meetings of the Board:
(f)
The manner in which any question before a meeting of the Board is to be determined:
(g)
The payment out of the funds of the Institute of fees, allowances, and expenses to members of the Board:
(h)
The provision of secretarial and administrative assistance for the Board:
(i)
The recording of the proceedings and decisions of the Board:
(j)
The form in which an application for registration under this Part of this Act is to be made:
(k)
The fees to be paid in respect of the making of an application for registration under this Part of this Act:
(l)
The information to be supplied by an applicant for registration under this Part of this Act:
(m)
The form in which notice of an application for registration under this Part of this Act is to be published:
(n)
The form in which the Register is to be set up and maintained:
(o)
The particulars that are to be entered in the Register in respect of the registration of any person:
(p)
The fees that are to be paid in respect of the making of any entry in the Register:
(q)
The procedure that is to be followed where any person wishes to apply to the Board for the restoration of his name to the Register:
(r)
The matters that are to be taken into account by the Board in considering whether to direct the Secretary to restore the name of any person to the register:
(s)
The form in which a certificate of registration under this Part of this Act is to be given, and the fees that are to be paid in respect of the issue of any such certificate.
(3)
Notwithstanding the foregoing provisions of this section, to the extent that any rules made under this section are inconsistent with the provisions of any regulations made under this Act, the provisions of those regulations shall prevail.
Part VI Approved Salesmen
81 Application for approval of salesman
(1)
An application for the approval of an unregistered salesman may be made to the Court at any time by a licensee or an applicant for a licence.
(2)
The application shall be made in the prescribed form, and accompanied by the prescribed fee.
(3)
Where the application is made by an applicant for a licence, it shall be attached to and form part of the application for a licence.
(4)
The application shall include the following information:
(a)
The full name of the applicant and (where he is a licensee) the address of his registered office; and
(b)
The full name, residential address, occupation, and date of birth of the prospective salesman; and
(c)
Such other information as may be prescribed.
(5)
The applicant shall, as soon as practicable after filing the application in the Court, serve a copy of it on the Institute.
(6)
In addition to complying with subsection (5) of this section, the applicant shall cause a notice of the application in the prescribed form to be published twice, at an interval of not more than 14 days, in a newspaper or newspapers approved for the purpose by the Registrar.
(7)
The application shall not be heard or determined before the expiration of 1 month after the applicant has complied with subsections (5) and (6) of this section.
Compare: 1974, No. 48, s. 36
82 Temporary permission to employ salesman
(1)
Notwithstanding section 58 of this Act, where under subsection (1) of section 81 of this Act an application for the approval of a salesman has been filed but not determined, the Registrar may, in writing, authorise the applicant to employ the prospective salesman for any period not exceeding 2 months, or such longer period as a Magistrate, on application to him made in that behalf, may allow.
(2)
Notwithstanding subsection (1) of this section, an authority given under that subsection shall in any event cease to have effect when the application for approval is determined.
Compare: 1974, No. 48, s. 37
83 Objections to grant of application
(1)
Within 1 month after the receipt by the Institute of a copy of an application under subsection (5) of section 81 of this Act, it may file in the Court a notice of its desire—
(a)
To object to the approval of the prospective salesman, in which case it shall state in the notice the grounds of its objection; or
(b)
To be heard in respect of the application, in which case it shall state in the notice the reasons why it desires to be heard.
(2)
Within 1 month after the date of the first publication of the notice required by subsection (6) of section 81 of this Act, any person (other than the Institute) may file in the Court a notice of his desire to object to the grant of the application.
(3)
An objection under this section may be made only on the ground that the prospective salesman is not a proper person to be a motor vehicle salesman.
(4)
The Institute and any other person filing a notice under this section shall cause a copy of the notice to be served on the applicant within 7 days after filing it in the Court.
(5)
Where any notice is filed under this section, the prospective salesman shall be entitled to appear and be heard as a party to the application.
84 Determination of application and issue of certificate of approval
(1)
Where the Magistrate is satisfied in respect of an application for the approval of a salesman that this Part of this Act has been complied with, and that, having regard to the interests of the public, the prospective salesman is a proper person to be a motor vehicle salesman, he shall grant the application.
(2)
In any case where the Magistrate is not so satisfied he shall refuse the application.
(3)
Where an application for the approval of a salesman is granted under this section, the Registrar shall, on payment to him of the prescribed fee, issue to the prospective salesman a certificate of approval in the prescribed form.
Compare: 1974, No. 48, ss. 39, 40
85 Effect of certificate of approval
(1)
A certificate of approval shall authorise the holder to be employed by the applicant during the currency of the certificate as a motor vehicle salesman.
(2)
Every certificate of approval shall, unless it is sooner cancelled in accordance with the provisions of this Act, continue in force until the expiry of the year in respect of which it is issued, and may from time to time be renewed for the next succeeding year.
Compare: 1974, No. 48, s. 41
86 Approved salesman to produce certificate of approval on demand
Every approved salesman shall produce his certificate of approval for inspection on demand by any member of the Police or by any person with whom he is dealing in the course of transacting or attempting to transact business as a motor vehicle salesman. Every approved salesman who wilfully contravenes the requirement of this section commits an offence against this Act.
87 Renewal of certificate of approval
(1)
An application for the renewal of a certificate of approval shall be made in the prescribed form by the licensee by whom the salesman is employed, and shall be filed in the Court not earlier than the 1st day of January and not later than the last day of February preceding the date of the expiry of the certificate.
(2)
After filing the application in the Court, the applicant shall serve a copy of it on the Institute in the same manner as if it were an application for the issue of a certificate of approval.
(3)
The application shall not be heard before the expiration of 1 month after the applicant has complied with subsection (2) of this section.
(4)
The Institute may, before the 7th day of March preceding the date of the expiry of the certificate of approval, file in the Court a notice of its desire to object to the renewal of the certificate, or to be heard in respect of the application, in the same manner as if it were an application for the issue of a certificate of approval, and subsection (4) of section 83 of this Act, with any necessary modifications, shall apply accordingly.
(5)
Subject to subsection (8) of this section, where no notice is filed in the Court under subsection (4) of this section within the time allowed, the Registrar shall grant the application without further inquiry.
(6)
Where a notice is filed in the Court within the time allowed, the application shall be heard and determined by a Magistrate in the same manner as if it were an application for the issue of a certificate of approval.
(7)
In any case to which subsection (6) of this section applies the salesman shall be entitled to appear and be heard as a party to the application.
(8)
An application for the renewal of a certificate of approval, or any objection thereto, may be heard and determined under this section notwithstanding that the application or the notice of objection is not filed within the time limit specified in this section, if the application or notice, as the case may be, is filed before the date of the expiry of the certificate of approval.
(9)
Where an application for the renewal of a certificate of approval is granted, the Registrar shall, on payment to him of the prescribed fee, endorse the certificate of approval accordingly.
(10)
Where an application for the renewal of a certificate of approval has been made but not determined before the date on which the certificate would otherwise expire, the certificate shall continue in force until the application is determined.
Compare: 1974, No. 48, s. 44
88 Voluntary surrender of certificate of approval
(1)
A salesman may at any time surrender his certificate of approval by forwarding a written notice to that effect, together with the certificate, to the Court.
(2)
The Registrar shall endorse on the notice the date on which he receives it, and the certificate shall, as from that date, cease to have effect.
(3)
Where a salesman forwards to the Court a notice under, subsection (1) of this section, the Registrar shall forward a copy of it to the Institute, together with written notice of the date from which the certificate of approval ceased to have effect.
(4)
The surrender of a certificate of approval under this section shall not affect the salesman’s liability—
(a)
To perform any obligation required to be performed by him by or under this Act on or before the date on which the certificate would, but for its surrender, expire:
(b)
For any act done or default made before the date on which the certificate ceased to have effect.
Part VII Dealings in Motor Vehicles
89 Term as to title in new and secondhand motor vehicles
(1)
In every contract of sale of a motor vehicle (whether new or secondhand) entered into after the commencement of this Act by a licensee in the course of his business, whether as principal or agent, there shall be implied a term that—
(a)
The vendor is the true owner of the motor vehicle to be sold, exchanged, or leased, or is duly authorised by a power of attorney given by the true owner to sell, exchange, or lease the motor vehicle; and
(b)
The motor vehicle will be free from any charge or encumbrance in favour of any third party (other than a charge or encumbrance disclosed to the purchaser in writing by the licensee before the contract becomes binding on the purchaser, or a charge or encumbrance created by or with the express consent of the purchaser) at the time when the property is to pass.
(2)
Every person who suffers loss by reason of the breach by a licensee of the term implied in a contract for the sale of a motor vehicle by subsection (1) of this section shall, subject to subsection (3) of section 40 of this Act, be entitled to claim and receive compensation in respect of the loss out of the Motor Vehicle Dealers Fidelity Guarantee Fund in accordance with Part III of this Act.
Compare: 1958, No. 112, s. 27; 1908, No. 168, s. 14; 1971, No. 147, s. 11
90 Particulars to be displayed in respect of secondhand motor vehicles
(1)
A licensee shall not offer or display for sale, or cause or permit to be offered or displayed for sale, a secondhand motor vehicle (not being a commercial vehicle) unless there is attached to that motor vehicle in a prominent position a notice in the prescribed form containing the required particulars.
(2)
For the purposes of this section the required particulars are—
(a)
The name and business address of the licensee; and
(b)
Where the vehicle is equipped with an odometer, the reading on the odometer at the time the vehicle was displayed for sale; and
(c)
Except in the case of a vehicle offered for sale at a public auction, the cash price of the vehicle; and
(d)
The year in which the vehicle was first registered, or, if the vehicle was first registered overseas, the word “ex-overseas”
; and
(e)
The model designation (if any) of the vehicle; and
(f)
The current registration number of the vehicle; and
(g)
The engine capacity of the vehicle; and
(h)
Where the vehicle is or has been used as a taxi, the word “ex-taxi”
; and
(i)
Where the vehicle is or has been used as a rental-car, the words “ex-rental car”
; and
(j)
The number of previous owners (other than trade owners); and
(k)
Such other particulars as may be prescribed.
(3)
In addition to the particulars set out in subsection (2) of this section, there shall be set out in the notice to which that subsection applies, or in a separate notice, the following further particulars:
(a)
In any case where the motor vehicle to which the notice relates is offered or displayed, by the licensee on behalf of a principal, for sale by tender, the words “For sale by tender. No warranty”
:
(b)
In any case where the motor vehicle is a rebuilt motor vehicle and the certificate of registration is endorsed to that effect, the words “Rebuilt vehicle. No warranty”
:
(c)
In any case where the motor vehicle has been repossessed and is to be sold pursuant to a hire purchase agreement or motor vehicle leasing agreement, the words “Repossessed vehicle. No warranty”
:
(d)
In any case where the motor vehicle was assembled overseas and its age and the distance it has travelled cannot be ascertained, the words “Ex-overseas. No warranty”
.
(4)
In addition to the particulars set out in subsection (2) of this section, there shall be set out in the notice in which those particulars are set out, the following further particulars:
(a)
Whether the motor vehicle is a category A motor vehicle, a category B motor vehicle, a category C motor vehicle, or a category D motor vehicle within the meaning of section 92 of this Act; and
(b)
The maximum extent of the licensee’s liability to repair or make good any defects in the motor vehicle in accordance with section 93 of this Act, expressed in terms of the distance to be driven by the motor vehicle, and the alternative period of time to elapse after the sale, before the licensee’s liability under that section will be extinguished.
(5)
Every notice to which this section applies shall be written clearly and legibly, and shall be of a size that enables a person to read it from a fair and reasonable distance, and shall be attached to the motor vehicle from the time when it is first displayed for sale until the time when it is sold.
(6)
A copy of every notice attached to a motor vehicle under this subsection shall be retained by the licensee, and a further copy shall be given to the purchaser in the event of the vehicle being sold:
Provided that if the motor vehicle is sold to a trade owner it shall be sufficient compliance with this subsection if the licensee gives to the purchaser a trade owner’s disposal notice in the prescribed form.
(7)
Every licensee who—
(a)
Fails to comply with subsection (1) of this section; or
(b)
Wilfully inserts or authorises or permits to be inserted in any notice attached to any motor vehicle in purported compliance with this section any statement or representation that is false or misleading in a material particular,—
commits an offence and is liable on summary conviction to a fine not exceeding $1,000.
(8)
Where, in any prosecution for an offence against subsection (7) of this section, it is alleged that the defendant wilfully inserted, or authorised or permitted to be inserted in any notice to which that subsection applies any statement or representation that is false or misleading in a material particular with respect to the year in which the motor vehicle was first registered, or to the model designation of the motor vehicle, it shall be a defence if the defendant proves—
(a)
That he took all reasonable steps to ascertain the year in which the motor vehicle was first registered, or (as the case may require) to ascertain the model designation of the motor vehicle; and
(b)
That to the best of his knowledge and belief at the time the statement or representation was true and accurate.
Compare: Second-hand Motor Vehicles Act 1971 (S.A.), s. 23
91 Odometer readings
(1)
For the purposes of sections 92 and 93 of this Act, where a motor vehicle to which any of the provisions of those sections applies is fitted with an odometer the reading shown at any time on the odometer shall be deemed, in the absence of proof to the contrary, to be accurate.
(2)
For the purposes of sections 92 and 93 of this Act, where a motor vehicle to which any of the provisions of those sections applies is fitted with an odometer that records distances in terms of miles—
(a)
A reference to 100,000 kilometres shall be deemed to be a reference to 60,000 miles:
(b)
A reference to 75,000 kilometres shall be deemed to be a reference to 45,000 miles:
(c)
A reference to 50,000 kilometres shall be deemed to be a reference to 30,000 miles:
(d)
A reference to 5,000 kilometres shall be deemed to be a reference to 3,000 miles:
(e)
A reference to 3,000 kilometres shall be deemed to be a reference to 2,000 miles:
(f)
A reference to 1,500 kilometres shall be deemed to be a reference to 1,000 miles.
92 Classification of secondhand motor vehicles for purposes of sections 93 to 95 of this Act
For the purposes of sections 93 to 95 of this Act,—
“Category A motor vehicle” means a secondhand motor vehicle that was first registered less than 4 years ago and that has been driven not more than 50,000 kilometres:
“Category B motor vehicle” means a secondhand motor vehicle that was first registered not more than 6 years ago and not less than 4 years ago and that has been driven not more than 75,000 kilometres:
“Category C motor vehicle” means a secondhand motor vehicle, other than a category A motor vehicle or a category B motor vehicle, that was first registered not more than 8 years ago and that has been driven not more than 100,000 kilometres:
“Category D motor vehicle” means any secondhand motor vehicle that is not a category A motor vehicle, a category B motor vehicle, or a category C motor vehicle.
93 Obligations of licensee in respect of sale of secondhand motor vehicles
(1)
Where, after the commencement of this section, any licensee sells a secondhand motor vehicle (other than a category D motor vehicle) to any person who does not by reason of the sale become the trade owner of the vehicle, there shall be implied in the contract of sale a term in the prescribed form that if a defect appears in that vehicle—
(a)
In the case of a category A motor vehicle, before the vehicle has been driven a distance of 5,000 kilometres since the date of the sale, or (in a case where the vehicle has not been driven that distance within the period of 3 months commencing with the date of the sale) before the expiration of that period; or
(b)
In the case of a category B motor vehicle, before the vehicle has been driven a distance of 3,000 kilometres since the date of the sale, or (in a case where the vehicle has not been driven that distance within the period of 2 months commencing with the date of the sale) before the expiration of that period; or
(c)
In the case of a category C motor vehicle, before it has been driven a distance of 1,500 kilometres since the date of the sale, or (in a case where the vehicle has not been driven that distance within the period of 1 month commencing with the date of the sale) before the expiration of that period,—
whether or not the defect existed at the time of the sale, the licensee shall repair or make good, or cause to be repaired or made good that defect so as to put the vehicle in a reasonable condition having regard to its age and the distance that it has been driven.
(2)
Where, after the commencement of this section, any licensee sells a category D motor vehicle to any person who does not by reason of the sale become the trade owner of the vehicle there shall be implied in the contract of sale a term in the prescribed form that the licensee warrants—
(a)
That the motor vehicle has a current warrant of fitness properly issued under the Transport Act 1962; and
(b)
That the motor vehicle is of merchantable quality and is fit for the purpose for which vehicles of that type are usually used.
(3)
Notwithstanding subsection (1) of this section, if, in any case to which that subsection applies it is not practicable for the person in possession of the car when the defect becomes apparent to call upon the licensee to repair or make good the defect, or cause the defect to be repaired or made good, that person may have the defect repaired or made good and recover the reasonable cost of so doing from the licensee. In such a case the licensee shall be entitled to a copy of such worksheets or other evidence of the work carried out as he may reasonably specify.
(4)
Notwithstanding subsection (1) of this section, where in any case to which that subsection applies,—
(a)
The reasonable cost of repairing or making good all defects in the motor vehicle exceeds the sum of $200; and
(b)
By reason of the work necessary to repair or make good all such defects having been carried out the value of the motor vehicle, compared to the value that the motor vehicle would have had if none of the defects had existed, is increased by an amount (in this subsection referred to as the betterment increment) that exceeds the sum of $100,—
the licensee may, by notice in writing in the prescribed form, require the purchaser to pay to him the amount of the betterment increment as may be agreed upon by the licensee and the purchaser, or, failing such agreement, as may be determined by a Disputes Tribunal on application made to it in that behalf.
(5)
Notwithstanding subsection (4) of this section, a licensee shall not be entitled to recover any sum under that subsection unless, before carrying out the relevant work, he obtains the written consent of the owner of the motor vehicle to the carrying out of that work. In any case where the owner refuses to give his consent the licensee shall cease to be under the liability to repair or make good the relevant defect imposed on him by this section.
(6)
For the purposes of calculating the period referred to in paragraph (a), or paragraph (b), or paragraph (c) of subsection (1) of this section, no account shall be taken of any part of any period during which the licensee has the vehicle in his possession for the purpose or purported purpose of ascertaining or carrying out his obligations under this section.
(7)
Nothing in subsection (1) of this section shall apply to any defect—
(a)
In any motor vehicle to which a notice was attached in accordance with section 90 of this Act containing the particulars required by any of paragraphs (a) to (d) of subsection (3) of that section if, at any time before the completion of the sale, a copy of that notice is signed by the purchaser and, upon completion, that copy is delivered to the purchaser for retention by him:
(b)
In any category C motor vehicle in respect of which all the requirements of section 94 of this Act have been complied with:
(c)
In respect of which notice was given in accordance with section 95 of this Act if, at any time before the completion of the sale, a copy of that notice is signed by the purchaser and, upon completion, that copy is delivered to the purchaser for retention by him:
(d)
Arising from or incidental to any accidental damage to the vehicle that occurred after the completion of the sale:
(e)
Arising from misuse by or negligence on the part of a driver of the vehicle that occurred after the completion of the sale:
(f)
Arising from failure to carry out normal maintenance after the completion of the sale:
(g)
The extent of which is aggravated by failure to cause repairs to be carried out as soon as practicable after the defect becomes apparent:
(h)
Arising out of the use of the motor vehicle in any form of motor sport:
(i)
Occurring in the tyres, battery, or any prescribed accessory to the vehicle:
(j)
Occurring in the interior trim, the panel work, the paintwork, or external fittings.
(8)
Nothing in this section shall apply to—
(a)
The sale of a motor vehicle where the purchaser was in possession of the vehicle for a period of not less than 3 months immediately preceding the date of the sale; or
(b)
The sale of any commercial vehicle; or
(c)
The sale of any motor cycle.
Compare: Second-hand Motor Vehicles Act 1971 (S.A.), s. 24
94 Optional no-warranty in respect of category C motor vehicles
(1)
Where a licensee offers or displays for sale, or causes or permits to be offered or displayed for sale any category C motor vehicle he may, for the purposes of paragraph (b) of subsection (7) of section 93 of this Act, attach to the motor vehicle a notice in the prescribed form bearing the words “Category C. No Warranty.”
(2)
The provisions of section 93 of this Act shall not apply in respect of the sale of any motor vehicle to which a notice has been attached under subsection (1) of this section if, at any time before the completion of the sale,—
(a)
The licensee gives to the purchaser a reasonable opportunity to take the motor vehicle to an independent person of the purchaser’s choice for evaluation; and
(b)
The purchaser makes a statutory declaration in the prescribed form to the effect that he understands that he is waiving all rights to which he would otherwise be entitled under section 93 of this Act; and
(c)
A copy of the notice referred to in subsection (1) of this section is signed by the purchaser, and, upon completion, that copy is delivered to the purchaser for retention by him.
95 Notice of defects
(1)
Where a licensee offers or displays for sale, or causes or permits to be offered or displayed for sale, any category A motor vehicle, category B motor vehicle, or category C motor vehicle he may, for the purposes of paragraph (c) of subsection (7) of section 93 of this Act, attach to the motor vehicle, and keep it attached at all times when the motor vehicle is displayed for sale, a notice in the prescribed form setting out with reasonable particularity each defect that he believes to exist in the vehicle together with his estimate of the reasonable cost of repairing or making good that defect.
(2)
If, in any notice referred to in subsection (1) of this section, the amount estimated by the licensee as the reasonable cost of repairing or making good any defect is less than the true reasonable cost of so doing, the purchaser may at any time within—
(a)
Three months, in the case of a category A motor vehicle; or
(b)
Two months, in the case of a category B motor vehicle; or
(c)
One month, in the case of a category C motor vehicle,—
after the date of the completion of the sale, require the licensee by notice in writing to pay to the purchaser the difference between the licensee’s estimate and the true reasonable cost, and, if the licensee fails to pay the amount as required, the purchaser shall be entitled to sue for and recover the same as a debt due to him from the licensee.
96 Procedure where dispute arises as to licensee’s responsibilities, etc.
(1)
Where a dispute arises involving an allegation that—
(a)
The licensee is in breach of the term implied in the contract of sale by section 89 of this Act; or
(b)
A secondhand motor vehicle (other than a commercial vehicle) as sold by the licensee to the purchaser is substantially different from the vehicle as represented in the notice attached to it in purported compliance with section 90 of this Act; or
(c)
The licensee has refused or failed to carry out any obligation imposed on him by section 93 of this Act, or has unreasonably delayed in carrying out any such obligation; or
(d)
The actual reasonable cost of repairing or making good any defect in a motor vehicle referred to in a notice attached to the vehicle in accordance with section 95 of this Act exceeds the licensee’s estimate of that cost as stated in the notice,—
the purchaser may make a written complaint to the Institute in accordance with this section.
(2)
On receipt of a complaint under this section, the Institute shall forthwith—
(a)
Refer it to the licensee concerned; and
(b)
Require the licensee by notice in writing to discuss the complaint with the purchaser, and to make a written report to the Institute, within 14 days after receiving the Institute’s notice or such further period as the Institute may allow, on the outcome of the discussions.
(3)
Every report shall contain—
(a)
A statement by the purchaser that the matter has been settled to his satisfaction; or
(b)
In any case where no such settlement is reached, a statement by either party that he requires the dispute to be referred to a Disputes Tribunal.
(4)
In any case where a report to which paragraph (b) of subsection (3) of this section applies is received by the Institute within the period allowed by or under paragraph (b) of subsection (2) of this section, and in any case where no report is received by the Institute within that period, the Institute shall refer the dispute to a Disputes Tribunal for investigation:
Provided that in any case where, by virtue of section 98 of this Act, a Disputes Tribunal has no jurisdiction to investigate the dispute the Institute shall, instead of referring the dispute to a Disputes Tribunal, advise the parties to the dispute accordingly.
97 Constitution of Disputes Tribunals
(1)
For the purposes of this Part of this Act, the Minister shall, by notice in the Gazette, establish such number of Motor Vehicle Disputes Tribunals as he thinks necessary.
(2)
Every Disputes Tribunal shall be given such distinctive name as the Minister determines, and any such name may from time to time be changed by the Minister.
(3)
Each Disputes Tribunal shall consist of—
(a)
One person appointed by the Minister to represent the interests of licensees; and
(b)
One person appointed by the Minister to represent the interests of consumers; and
(c)
One person appointed by the Minister to be the Chairman of the Disputes Tribunal.
(4)
The Secretary for Justice shall furnish such secretarial, recording, and other services as may be necessary to enable each Disputes Tribunal to exercise its functions and powers.
(5)
There shall be paid to the Chairman of every Disputes Tribunal, out of money appropriated by Parliament for the purpose, remuneration by way of fees, salary, and allowances (including travelling allowances and expenses) in accordance with the Fees and Travelling Allowances Act 1951, and the provisions of that Act shall apply accordingly as if the Chairman were a member of a statutory Board within the meaning of that Act.
98 Jurisdiction of Disputes Tribunal
(1)
A Disputes Tribunal shall have jurisdiction in accordance with this Part of this Act to inquire into any dispute referred to it by the Institute under section 96 of this Act if—
(a)
The total sum in dispute does not exceed $1,000; or
(b)
Both parties to the dispute consent in writing to the investigation of the dispute by the Disputes Tribunal.
(2)
In addition to the jurisdiction conferred on it by subsection (1) of this section, a Disputes Tribunal shall have jurisdiction to determine—
(a)
The amount of the betterment increment to be paid by the purchaser to the licensee in any case to which subsection (4) of section 93 of this Act applies; and
(b)
The application to any contract for the sale of a motor vehicle of any of the provisions of sections 14 to 16 of the Sale of Goods Act 1908 in any case referred to it under section 108 of this Act.
99 Procedure of Disputes Tribunal
(1)
As soon as practicable after a dispute is referred to it under section 96 of this Act, the Disputes Tribunal shall inquire into it and shall make such order in respect of the dispute as it thinks fit and as is authorised by the succeeding provisions of this Part of this Act.
(2)
Every Disputes Tribunal shall conduct its inquiry into a dispute in private.
(3)
In respect of any dispute the purchaser and the licensee concerned shall be entitled to appear before the Disputes Tribunal and to be heard, but shall not be entitled to be represented before the Tribunal by a barrister or solicitor.
(4)
Where a licensee company is a party to the dispute it shall be entitled to be represented at the hearing by any officer of the company.
(5)
In respect of any dispute the Disputes Tribunal may accept such evidence of any matter as it considers sufficient, whether or not the same would be admissible in a Court of law.
(6)
Section 125 of this Act, with any necessary modifications, shall apply in respect of hearings of a Disputes Tribunal.
(7)
Every decision of a Disputes Tribunal, together with the reasons therefor, shall be given in writing.
(8)
In respect of any dispute a Disputes Tribunal may direct the Secretary for Justice to arrange the publication, in a newspaper circulating in the district in which the Tribunal is established, of a notice of the subject-matter of the dispute and the Tribunal’s decision, and the Secretary for Justice shall do all such things as are necessary to comply with that direction.
(9)
Except in a case where a Disputes Tribunal considers that either party to the dispute has acted vexatiously or frivolously, it shall not have power to make an award of costs.
100 Determination of disputes alleging breach of implied term
Where any dispute referred to a Disputes Tribunal under section 96 of this Act involves an allegation that the licensee is in breach of the term implied in a contract of sale of a motor vehicle by section 89 of this Act, the Tribunal may, if it is satisfied that the licensee is in breach, make an order—
(a)
Requiring the licensee, within such period as the Tribunal may specify in the order, to carry out any work, or to do or refrain from doing any thing, as may be necessary to remedy the breach; or
(b)
Requiring the licensee to pay to the purchaser, or to anyone claiming through the purchaser, such sum by way of compensation for the breach as the Tribunal thinks fit; or
(c)
Rescinding the contract, in which case section 101 of this Act, with any necessary modifications, shall apply accordingly.
101 Determination of disputes alleging motor vehicle substantially different from that represented
(1)
Where any dispute referred to a Disputes Tribunal under section 96 of this Act involves an allegation that a secondhand motor vehicle (not being a commercial vehicle) as sold by the licensee to the purchaser is substantially different from the vehicle as represented in the notice attached to it in purported compliance with section 90 of this Act, the Tribunal may, if it is satisfied that the vehicle is substantially different as aforesaid, order that the contract of sale be rescinded in accordance with this section, and may make such further or consequential order as it thinks fit.
(2)
An order may be made under subsection (1) of this section notwithstanding that the parties cannot be restored to the position that they were in immediately before the contract was made, and in any such case the rights and obligations of each party shall be as specified in the order.
(3)
In any case in which a Disputes Tribunal makes an order under subsection (1) of this section, other than a case to which subsection (2) of this section applies, it shall, in the order,—
(a)
Require the purchaser to return the vehicle to the licensee; and
(b)
Require any consideration passed by the purchaser to be returned to him.
(4)
Where, in any case in which a Disputes Tribunal has made an order under subsection (1) of this section in respect of any contract of sale, there is associated with that contract a collateral credit agreement, the purchaser’s rights and obligations under that agreement shall, on the making of the order, be vested in the licensee and may thereafter be enforced by and against the licensee as if he were the purchaser.
(5)
In this section, the term “collateral credit agreement”
, in relation to a contract for the sale of a motor vehicle, means a contract or agreement arranged or procured by the licensee or by the purchaser for the provision of credit by a person other than the licensee to enable the purchaser to pay the price reserved by the contract for sale in respect of the motor vehicle.
102 Determination of disputes alleging failure to carry out obligations, etc.
(1)
Where any dispute referred to a Disputes Tribunal under section 96 of this Act involves an allegation that the licensee has refused or failed to carry out any obligation imposed on him by section 93 of this Act, or that he has unreasonably delayed in carrying out any such obligation, the Tribunal may, if it is satisfied that the licensee has refused, failed, or unreasonably delayed as aforesaid, make an order authorising the purchaser to cause the work that would have been necessary to carry out the obligation to be performed by any person named in the order, and to recover the cost of so doing, up to a maximum amount to be specified in the order, from the licensee.
(2)
In fixing, for the purposes of subsection (1) of this section, the maximum amount that is to be recoverable from the licensee, the Disputes Tribunal shall have regard to any quotation in respect of the work that is placed before it by either of the parties to the dispute:
Provided that in no case shall the Tribunal fix the maximum amount at less than the lowest such quotation placed before it by either of the parties, nor more than the lowest such quotation placed before it by the purchaser, unless the Tribunal is satisfied that any such quotation is unreasonable or unreliable.
(3)
Where an order is made under subsection (1) of this section and the purchaser pursuant to the order causes the person named in the order to perform the necessary work, the cost of so doing, up to the maximum amount specified in the order, shall be recoverable by the purchaser as a debt due from the licensee.
103 Determination of disputes alleging actual reasonable cost of repairing defect exceeds licensee’s estimate
(1)
Where any dispute referred to a Disputes Tribunal under section 96 of this Act involves an allegation that the actual reasonable cost of repairing or making good any defect in any motor vehicle referred to in a notice attached to the vehicle in accordance with section 95 of this Act exceeds the licensee’s estimate as stated in that notice, the Tribunal may determine the actual reasonable cost and, where the actual reasonable cost as so determined exceeds the licensee’s estimate, make an order requiring the licensee to pay to the purchaser the amount of the excess.
(2)
In determining, for the purposes of subsection (1) of this section, the actual reasonable cost of repairing or making good any defect the Disputes Tribunal shall have regard to any quotation in respect of the necessary work that is placed before it by either of the parties to the dispute:
Provided that in no case shall the Tribunal determine the actual reasonable cost to be an amount that is less than the lowest such quotation placed before it by either of the parties, nor more than the lowest such quotation placed before it by the purchaser, unless the Tribunal is satisfied that any such quotation is unreasonable or unreliable.
104 Registration of Disputes Tribunals’ decisions
(1)
Either party to a dispute before a Disputes Tribunal may, in the prescribed manner, register the written decision of the Tribunal in the office of the Court.
(2)
Notwithstanding subsection (1) of this section, no decision of a Disputes Tribunal may be registered unless the time allowed for an appeal against the decision has expired and no appeal has been brought.
(3)
Where a decision of a Disputes Tribunal has been registered in accordance with this section, it shall be deemed to be an order of the Court and shall be enforceable accordingly.
105 Disputes Tribunal may lay complaint where order disregarded
If any Disputes Tribunal has reason to believe that any licensee has refused or failed to comply with an order made by the Tribunal under this Part of this Act it may lay a complaint against the licensee with the Disciplinary Committee constituted under section 119 of this Act, and the provisions of Part VIII of this Act, with the necessary modifications, shall apply accordingly.
106 Chairman of Disputes Tribunal to submit annual report
The Chairman of every Disputes Tribunal shall submit an annual report to the Minister summarising the disputes dealt with during the year, detailing any cases that in his opinion require special mention, and making such recommendations for amendments to this Act (if any) as the Chairman thinks desirable in the light of the experience of the Tribunal. Within 28 days after receiving any such report the Minister shall make copies available to the news media.
107 No contracting out
(1)
The provisions of this Part of this Act shall have effect notwithstanding any provision to the contrary in any contract of sale or other agreement.
(2)
Sections 14 and 56 of the Sale of Goods Act 1908 shall be read subject to the provisions of this Part of this Act.
108 Disputes involving sections 14 to 16 of Sale of Goods Act 1908 may be referred to Disputes Tribunal
If, in respect of any contract for the sale of a motor vehicle, a dispute arises as to the application to that contract of any of the provisions of sections 14 to 16 of the Sale of Goods Act 1908, the parties may agree in writing to refer the dispute to a Disputes Tribunal for determination, and in any such case section 99 of this Act, with any necessary modifications, shall apply accordingly.
109 Application of Act to branch managers
(1)
For the purposes of the provisions of this Act, except Part I, every branch manager shall be deemed to be a licensee.
(2)
For the purposes of the foregoing provisions of this Part of this Act, if any motor vehicle to which this Part applies is sold at a branch office, the motor vehicle shall be deemed to have been sold by the branch manager and not by the licensee.
(3)
In any case to which subsection (2) of this section applies, for the purposes of section 42 of this Act the licensee shall be deemed to have guaranteed the compliance by the branch manager with all of the provisions of this Part of this Act, and in the event of default by the branch manager the licensee shall be liable accordingly.
110 Form of agreements for sale of motor vehicles
(1)
Every agreement for the sale of a secondhand motor vehicle by a licensee (not being an agreement all the parties to which are licensees) shall—
(a)
Be in writing; and
(b)
Be signed by or on behalf of the vendor and the purchaser; and
(c)
In a case where the licensee is not the vendor, or where he is the vendor but the sale is negotiated by a manager or salesman employed by the licensee, be signed by the manager or salesman; and
(d)
In the case of an agreement to sell a secondhand motor vehicle, contain a description of the vehicle sufficient to identify it; and
(e)
Specify the price and any other charges to be paid, and the time and manner in which the price and any other charges are to be paid; and
(f)
In a case where the motor vehicle is equipped with an odometer, state the current reading on the odometer.
(2)
Any contract that does not comply with subsection (1) of this section shall be voidable by the purchaser by notice in writing to the licensee (or, as the case may require, the manager) at any time within 1 month after the date of the contract.
(3)
Subsection (2) of this section shall not apply if the licensee shows—
(a)
That the non-compliance was not of such a nature as to mislead or deceive the purchaser to his prejudice; or
(b)
In any other case, that the vendor has promptly remedied the non-compliance (in so far as it is capable of being remedied) on its being discovered or brought to his notice and has, where appropriate, compensated or offered to compensate the purchaser for the prejudice caused to him.
(4)
Where, in any case in which a contract is avoided under subsection (2) of this section, there is associated with that contract a collateral credit agreement, the purchaser’s rights and obligations under that agreement shall, on the avoidance of the contract, be vested in the licensee and may thereafter be enforced by and against the licensee as if he were the purchaser.
(5)
For the purposes of subsection (3) of this section, the term “collateral credit agreement”
has the meaning assigned to it by subsection (5) of section 101 of this Act.
(6)
The provisions of this section shall apply notwithstanding anything in the Hire Purchase Act 1971.
111 Evidence of contract of agency
No person shall be entitled to sue for or recover any commission, reward, or other valuable consideration in respect of any service or work performed by him as an agent in purchasing, selling, exchanging, or leasing any motor vehicle, unless—
(a)
He was the holder of a licence at the time when he performed the service or work; and
(b)
His appointment to act as agent is in writing signed, either before or after the performance of the service or work, by the person to be charged with the commission, reward, or consideration, or by some person on his behalf lawfully authorised to sign the appointment.
Compare: 1958, No. 112, s. 28
Part VIII Disciplinary Provisions
112 Grounds on which licence may be cancelled or licensee suspended
(1)
The Institute, the Disciplinary Committee, or any other person with leave of a Magistrate, may at any time apply to the Court for an order cancelling a motor vehicle dealer’s licence or suspending the licensee on any of the following grounds:
(a)
That the licensee, or, in the case of a licensee company, any officer of the company, has been convicted of an offence against section 59 or section 60 of this Act:
(b)
That the licensee, or, in the case of a licensee company, any officer of the company, has been convicted of an offence against this Act within 12 months after having been convicted of any other offence against this Act:
(c)
That the licensee, or, in the case of a licensee company, any officer of the company, has been convicted of a crime against the person or of a crime involving dishonesty:
(d)
That the licensee, or, in the case of a licensee company, any officer of the company, has been guilty of misconduct in the course of his or the company’s business as a motor vehicle dealer, and that by reason of that misconduct it is in the interests of the public that the licence be cancelled or the licensee be suspended:
(e)
That the licensee, or, in the case of a licensee company, any officer of the company, is of such a character that it is in the interests of the public that the licence be cancelled or the licensee be suspended:
(f)
That the licensee, or any partner of the licensee, or in the case of a licensee company, any officer of the company, has been adjudicated bankrupt, or has made any assignment for the benefit of his creditors, or has made any composition with his creditors:
(g)
That, in the case of a licensee company, the company is in liquidation, or the Supreme Court has made an order for the winding up of the company, or the company has passed a resolution for voluntary winding up.
(2)
Notwithstanding subsection (1) of this section, no order for the cancellation of a licence or the suspension of a licensee shall be made on the ground set out in paragraph (c) of that subsection in respect of any offence of which the licensee was convicted before he was granted a licence if—
(a)
The conviction was known to the Magistrate at the time when he granted the licence; or
(b)
The offence is not a reportable offence.
(3)
A Disputes Tribunal, the Institute, or any interested party may at any time apply to the Court for an order cancelling a motor vehicle dealer’s licence or suspending the licensee on the ground that the licensee has refused or failed to comply with an order made by the Tribunal, or has unreasonably delayed in complying with the order:
Provided that no application may be made under this subsection unless the Tribunal’s order has been registered in accordance with section 104 of this Act.
Compare: 1958, No. 112, s. 25
113 Suspension of licensee pending determination of complaint
(1)
Where an application has been made to the Court under subsection (1) of section 112 of this Act and a Magistrate is satisfied that it is necessary or desirable to do so having regard to the interests of the public, and to the possibility of further loss or damage occurring if he does not make an order under this section, he may make an order suspending the licensee in respect of whom the application has been made until the application has been heard and determined.
(2)
The Magistrate shall not be obliged to give any notice to the licensee that he intends to make an order of suspension under this section.
(3)
The Magistrate shall notify the licensee in writing of any order of suspension made by him under this section and of his reasons for making the order, and shall, as soon as practicable thereafter, afford the licensee an opportunity to make representations to the Magistrate for the revocation of the order.
(4)
An order of suspension made under this section shall come into force when the licensee is notified of the order in accordance with subsection (3) of this section, and while it continues in force, the licensee’s licence shall cease to have effect, and shall not be renewed, and no new licence shall be granted to the licensee.
(5)
The Magistrate may at any time, on his own motion or on the application of the licensee, revoke an order of suspension made under this section.
Compare: 1974, No. 48, s. 55
114 Hearing of application for cancellation of licence or suspension of licensee
(1)
The Registrar shall send a copy of every application filed in the Court under section 112 of this Act to the licensee concerned.
(2)
No application shall be heard or determined until the expiration of 1 month after the Registrar has complied with subsection (1) of this section.
(3)
Where the application has been filed by any person other than the Institute, the Registrar shall also serve a copy of the application on the Institute.
(4)
Every application shall be prosecuted at the hearing—
(a)
In any case where the Institute is the complainant, by the Institute; and
(b)
In every other case, by the complainant or such other person as the complainant, with the consent of the Magistrate, may appoint.
(5)
On an application to which this section applies, the licensee concerned shall be entitled to appear and be heard.
(6)
On such an application, any statement in writing signed by the Chairman of the Disciplinary Committee and by the licensee or his solicitor or counsel, setting out any facts admitted as having been proved at any inquiry held under section 120 of this Act, shall be admissible as evidence of those facts.
Compare: 1974, No. 48, s. 56
115 Court may cancel licence or suspend licensee
(1)
On an application made under section 112 of this Act, the Court may make an order—
(a)
Cancelling the motor vehicle dealer’s licence; or
(b)
Suspending the licensee for any period not exceeding 12 months.
(2)
While any order of suspension continues in force, the person to whom the order relates—
(a)
Shall be deemed to be unlicensed; and
(b)
Shall not be eligible to act as an officer of a licensee company.
Compare: 1974, No. 48, s. 57
116 Board may cancel salesman’s registration or suspend registered salesman
(1)
The Institute, or any other person with leave of the Board, may at any time apply to the Board for an order cancelling the registration of a salesman or suspending the salesman on any of the following grounds:
(a)
That the salesman has been convicted of a crime against the person or of a crime involving dishonesty:
(b)
That the salesman has been guilty of misconduct in the course of his employer’s business as a motor vehicle dealer, and that by reason of that misconduct it is in the interests of the public that the salesman’s registration be cancelled or the salesman be suspended:
(c)
That the salesman is of such a character that it is in the interests of the public that the salesman’s registration be cancelled or the salesman be suspended.
(2)
Subsection (2) of section 112 and sections 113 to 115 and 121 to 128 of this Act, with any necessary modifications, shall apply to applications made under subsection (1) of this section.
117 Court may cancel certificate of approval or suspend salesman
(1)
The Institute, or any other person with leave of the Court, may at any time apply to the Court for an order cancelling a certificate of approval or suspending a salesman on any of the following grounds:
(a)
That the salesman has been convicted of a crime against the person or of a crime involving dishonesty:
(b)
That the salesman has been guilty of misconduct in the course of his employer’s business as a motor vehicle dealer and that by reason of that misconduct it is in the interests of the public that the certificate of approval be cancelled or the salesman be suspended:
(c)
That the salesman is of such a character that it is in the interests of the public that the certificate of approval be cancelled or the salesman be suspended.
(2)
Subsection (2) of section 112 and sections 113 to 115 of this Act, with any necessary modifications, shall apply to applications made under subsection (1) of this section.
118 Police may institute disciplinary proceedings
(1)
Any member of the Police duly authorised by the Commissioner of Police in that behalf may at any time apply to the Court, or, as the case may require, to the Board, for an order cancelling any licence, certificate of approval, or salesman’s registration or suspending any licensee, or salesman on the ground that the licensee, or salesman has been convicted of any crime against the person or any crime involving dishonesty.
(2)
Subsection (2) of section 112 and sections 113 to 115 of this Act, with any necessary modifications, shall apply to applications made under subsection (1) of this section.
119 Constitution of Disciplinary Committee
(1)
For the purposes of the succeeding provisions of this Part of this Act, there shall be established within the Institute a Committee, to be known as the Motor Vehicle Dealers Disciplinary Committee.
(2)
The Disciplinary Committee shall consist of—
(a)
Not less than 5 and not more than 8 members of the Institute to be appointed by the Council; and
(b)
A barrister or solicitor to be appointed as Chairman in accordance with subsection (3) of this section.
(3)
The Council shall from time to time appoint a barrister or solicitor to act as Chairman of the Disciplinary Committee at the hearing of complaints under this Part of this Act generally, or at the hearing of complaints held in any specified locality, or at the hearing of any specified complaint.
(4)
Within the limits prescribed by subsection (2) of this section, the Council may from time to time remove from office any member of the Disciplinary Committee, or fill any vacancy in its membership.
(5)
Subject to subsection (3) of section 120 of this Act, 3 members of the Disciplinary Committee, including the Chairman, shall constitute a quorum.
(6)
Subject to this Part of this Act, the Disciplinary Committee shall regulate its own procedure.
Compare: 1963, No. 135, s. 61
120 Disciplinary Committee to consider complaints against licensees
(1)
Without limiting or derogating from any other provisions of this Act relating to offences by licensees, and without limiting or derogating from any disciplinary powers embodied in the rules of the Institute except to the extent (if any) to which those rules may be inconsistent with this section, the Institute may at any time lay with the Disciplinary Committee a complaint that a licensee, or, in the case of a licensee company, any officer of the company, has been guilty of misconduct in the course of the licensee’s business as a motor vehicle dealer, or that the licensee has been guilty of any breach of the duties and obligations imposed on him by or under this Act.
(2)
Subject to the succeeding provisions of this Part of this Act, if, after inquiring into any such complaint, the Disciplinary Committee is satisfied that the licensee, or, as the case may require, the officer of the licensee company, has been guilty of such misconduct, or that the licensee is in breach of any such duty or obligation, it may—
(a)
Apply to the Court under section 112 of this Act, or recommend to the Institute that it apply under that section, for an order cancelling the motor vehicle dealer’s licence or suspending the licensee; or
(b)
Order the licensee to pay to the Institute such sum by way of penalty, not exceeding $100, as the Committee thinks fit; or
(c)
Reprimand the licensee, or, as the case may require, the officer of the licensee company.
(3)
No action shall be taken by the Disciplinary Committee under subsection (2) of this section otherwise than pursuant to a resolution—
(a)
Passed at a meeting attended by at least 4 members of the Committee, including the Chairman; and
(b)
Voted for by at least 4 members of the Committee.
Compare: 1963, No. 135, s. 62
121 Disciplinary Committee may delegate to subcommittee
(1)
If the Disciplinary Committee in any case thinks fit, it may delegate the hearing of any complaint under this Part of this Act to a subcommittee consisting of at least 3 members of the Committee, together with a barrister or solicitor appointed for the purpose to act as Chairman at the hearing.
(2)
A subcommittee appointed under subsection (1) of this section shall, in relation to the complaint before it, be deemed for the purposes of this Part of this Act to be the Disciplinary Committee.
Compare: 1963, No. 135, s. 68
122 Venue
The hearing of any complaint by the Disciplinary Committee under this Part of this Act shall, unless otherwise agreed between the Committee and the licensee or officer of the licensee company concerned, be held in the locality in which the principal place of business of the licensee or licensee company is situated.
Compare: 1963, No. 135, s. 67
123 Right of licensee or officer to be heard
Except in the case of a decision to apply for an order of interim suspension under section 113 of this Act, the Disciplinary Committee shall not exercise any of its powers under this Part of this Act without first giving to the licensee or officer of the licensee company concerned a reasonable opportunity to be heard.
Compare: 1963, No. 135, s. 63
124 Witnesses may be required to attend and give evidence
(1)
The Disciplinary Committee may, by notice in writing signed by its Chairman, require any person to attend and give evidence before it at the hearing of any complaint under this Part of this Act, and to produce all books and documents in that person’s custody or under his control relating to the subject-matter of any such complaint.
(2)
The Disciplinary Committee may require evidence to be given on oath, either orally or in writing, and for that purpose the Chairman may administer an oath.
(3)
Every person commits an offence against this Act who, without lawful justification, refuses or fails to attend and give evidence when required to do so by the Disciplinary Committee, or to answer truly and fully any question put to him by a member of the Committee, or to produce to the Committee any book or document required by the Committee to be produced by him.
(4)
Every witness giving evidence or attending to give evidence at the hearing of any complaint by the Disciplinary Committee under this Part of this Act shall be entitled to such sum for his expenses and loss of time as he would be entitled to if he were a witness in criminal proceedings in a Magistrate’s Court.
(5)
Subject to any order as to costs made by the Disciplinary Committee, all sums to which any witness is entitled under subsection (4) of this section shall be paid to the witness by the Institute.
Compare: 1963, No. 135, ss. 69, 71
125 Immunity of witnesses, counsel, and Institute
(1)
Witnesses and counsel shall have the same privileges and immunities in relation to complaints heard by the Disciplinary Committee under this Part of this Act as they would have if the complaints were proceedings in a Court of law.
(2)
Neither the Institute, nor any member of the Institute, nor any member of the Disciplinary Committee shall be under any criminal or civil liability in respect of anything done or omitted to be done at or for the purposes of the hearing of any complaint under this Part of this Act, unless it is proved to the satisfaction of the Court before which any proceedings are taken that the defendant in those proceedings has acted in bad faith.
Compare: 1963, No. 135, ss. 70, 75
126 Disciplinary Committee may award costs
(1)
After hearing any complaint under this Part of this Act the Disciplinary Committee may make such order as to costs as it thinks fit, including—
(a)
An order that costs be awarded to the licensee against whom the complaint was made, and that the costs be paid by the Institute:
(b)
An order that the licensee concerned pay to the Institute, or to any other person, such sum as the Committee thinks fit in respect of the costs and expenses of and incidental to the inquiry or any preliminary investigation conducted by the Institute.
(2)
An order as to costs may be made under paragraph (b) of subsection (1) of this section notwithstanding that the Disciplinary Committee has not formally found in favour of the complainant, if the Committee is satisfied that the making of the complaint was justified, and that it would be fair and reasonable to make such an order.
Compare: 1963, No. 135, s. 65
127 Recovery of penalties and costs
Any sum ordered by the Disciplinary Committee to be paid by way of penalty, costs, or expenses shall be deemed to be a debt due by the person ordered to pay it to the person to whom it is ordered to be paid, and shall be recoverable accordingly.
Compare: 1963, No. 135, s. 66
128 Form and proof of orders of Disciplinary Committee
(1)
Every decision made by the Disciplinary Committee under this Part of this Act shall be given in writing, and signed by the person who acted as Chairman at the meeting at which the decision was made, or, if he is not available, then by any other member of the Committee who was present at the meeting.
(2)
Every such decision, other than a decision to apply for an order of interim suspension under section 113 of this Act, shall contain a statement of the Committee’s findings in relation to the case.
(3)
Every document purporting to be a decision of the Disciplinary Committee and to be signed by the Chairman or other member of the Committee shall, in the absence of proof to the contrary, be deemed to be a decision of the Disciplinary Committee duly made, without proof of the making thereof, or proof of the signature, or proof that the person signing the decision was in fact the Chairman or the member entitled to sign the decision.
Compare: 1963, No. 135, s. 73
129 Council may make rules for the purposes of this Part of this Act
(1)
Subject to the provisions of this Part of this Act, the Council may make rules for any of the purposes of this Part of this Act.
(2)
Without limiting the generality of subsection (1) of this section, the Council may make rules under that subsection in respect of all or any of the following matters:
(a)
The manner in which members of the Institute are to be selected for appointment to the Disciplinary Committee:
(b)
The manner in which extraordinary vacancies in the membership of the Committee are to be filled:
(c)
The appointment of a deputy to act for a member of the Committee during that member’s absence or incapacity:
(d)
When meetings of the Committee are to be held, and the persons who are to be entitled to call such a meeting:
(e)
The procedure to be followed at meetings of the Committee:
(f)
The payment out of the funds of the Institute of fees, allowances, and expenses to members of the Committee:
(g)
The provision of secretarial and other administrative assistance to the Committee.
(3)
Notwithstanding the foregoing provisions of this section, to the extent that any rules made under this section are inconsistent with the provisions of any regulations made under this Act, the provisions of those regulations shall prevail.
Part IX Appeals
130 Appeals to Supreme Court
(1)
In every case where a Magistrate—
(a)
Refuses under section 15 of this Act to grant an application for a licence; or
(b)
Refuses under section 18 of this Act to grant an application for the renewal of a licence; or
(c)
Refuses under section 20 of this Act to grant an application for approval of a person to act as an officer of a licensee company; or
(d)
Refuses under section 84 of this Act to grant an application for a certificate of approval; or
(e)
Refuses under section 87 of this Act to grant an application for the renewal of a certificate of approval,—
the applicant shall have a right of appeal to the Supreme Court.
(2)
In every case where a Magistrate—
(a)
Cancels a licence or suspends a licensee under section 115 of this Act; or
(b)
Cancels a certificate of approval or suspends a sales man under section 117 of this Act,—
the licensee or salesman shall have a right of appeal to the Supreme Court.
(3)
In every case where the Board—
(a)
Refuses under section 71 of this Act to grant an application for registration as a salesman; or
(b)
Cancels a salesman’s registration or suspends a sales man under section 116 of this Act,—
the applicant or salesman shall have a right of appeal to the Supreme Court.
(4)
Every appeal under this section shall be by way of rehearing, and shall be heard by a Judge sitting in the Administrative Division of the Supreme Court.
(5)
Every appeal under this section shall be brought within 28 days after the date on which the appellant was notified of the decision appealed against, or within such further period as the Supreme Court may allow.
(6)
On hearing the appeal, the Court may—
(a)
Confirm or reverse the decision appealed against; or
(b)
In the case of an order suspending a licensee, manager, or salesman, vary the period of suspension; or
(c)
Refer the matter back to the Magistrate or Board with directions to reconsider the whole or any specified part of the matter.
(7)
Subject to section 131 of this Act, the decision of the Supreme Court on any appeal under this section shall be final.
(8)
Subject to the foregoing provisions of this section, the procedure in respect of any appeal under this section shall be in accordance with the ordinary rules of Court.
Compare: 1974, No. 48, s. 64
131 Appeals to Court of Appeal on questions of law
(1)
If any party to an appeal under section 130 of this Act is dissatisfied with the decision of the Supreme Court in respect of the appeal as being erroneous in law, he may, with leave of the Supreme Court, appeal to the Court of Appeal by way of case stated for the opinion of that Court on a question of law:
Provided that if the Supreme Court refuses leave to appeal under this subsection the Court of Appeal may grant special leave to appeal.
(2)
On any appeal under subsection (1) of this section, the Court of Appeal may make such order or determination as it thinks fit.
(3)
The decision of the Court of Appeal on an appeal under this section, or on any application for leave to appeal, shall be final.
(4)
Subject to the foregoing provisions of this section, the procedure in respect of any appeal under this section shall be in accordance with the ordinary rules of Court.
132 Appeals to Magistrate’s Court
(1)
In any case where the Disciplinary Committee imposes a penalty on a licensee under paragraph (b) of subsection (2) of section 120 of this Act, the licensee shall have a right of appeal to a Magistrate.
(2)
An appeal under this section shall be brought within 28 days after the date on which the appellant was notified in writing of the Disciplinary Committee’s decision, or within such further period as the Magistrate may allow.
(3)
On hearing the appeal, the Magistrate may confirm, vary, or reverse the decision of the Disciplinary Committee.
(4)
The Magistrate’s decision in respect of the appeal shall be final.
(5)
Subject to the foregoing provisions of this section, the procedure in respect of any appeal under this section shall be in accordance with the ordinary rules of Court.
133 Appeals from decision of Disputes Tribunal
(1)
Any party who is dissatisfied with a decision given by a Disputes Tribunal under Part VII of this Act may, within 14 days after notice of the decision is given to him, appeal to a Magistrate—
(a)
In any case where the amount in dispute exceeds $500, on the ground that the Tribunal’s decision was erroneous in fact or law, or in both fact and law; and
(b)
In any case where the amount in dispute does not exceed $500, on the ground that the Tribunal’s decision was erroneous in law.
(2)
A Magistrate’s decision given under this section shall be final.
Compare: 1974, No. 48, s. 65
Part X Miscellaneous Provisions
134 Offences relating to misdescription of motor vehicles, etc.
Every licensee who, with intent to misrepresent the value of any secondhand motor vehicle,—
(a)
Alters or causes to be altered the reading on any odometer with which the vehicle is equipped, or removes any such odometer; or
(b)
States or represents to any person as the year in which the vehicle was first registered any year other than the actual year in which it was first registered; or
(c)
States or represents to any person as the model designation of the vehicle any model designation other than the actual model designation of the vehicle—
commits an offence and is liable to a fine not exceeding $1,000.
Compare: Second-hand Motor Vehicles Act 1971 (S.A.), s. 35
135 Licensee liable for employee’s statements
For the purposes of this Act any statement or representations made by any motor vehicle salesman in the course of his employment by a licensee, or by any other person acting on behalf of a licensee, to any other person relating to the quality, description, or history of a secondhand motor vehicle offered or displayed for sale by the licensee shall be deemed to have been made by the licensee.
136 Licensee not entitled to indemnity from previous owner
Where a licensee incurs any liability arising out of the sale of any secondhand motor vehicle by nature of the provisions of this Act he shall not be entitled to be indemnified by the person from whom he acquired the motor vehicle, and any contract or agreement purporting to entitle the licensee to such an indemnity shall be of no effect:
Provided that nothing in this section shall apply if the previous owner was a trade owner.
137 General provision relating to offences
Except where this Act otherwise provides,—
(a)
Every person who commits an offence against this Act or against any regulations made under this Act is liable to a fine not exceeding $500:
(b)
Every offence against this Act or against any regulations under this Act shall be punishable on summary conviction before a Magistrate.
Compare: 1958, No. 112, s. 31
138 Police to notify reportable offences
(1)
Every application for the issue of a licence, the approval of a branch manager, or a certificate of approval, and every application for registration as a motor vehicle salesman shall, as soon as practicable after receipt, be referred to the Police.
(2)
As soon as practicable after receiving an application under subsection (1) of this section, the Police shall notify the Court or Board hearing the application of any reportable offence of which the person in respect of whom the application is made is known by the Police to have been convicted.
139 Evidence of offences
For the purposes of Part VIII of this Act, a certificate containing the substance of the conviction of any person of an offence against section 59 or section 60 of this Act, or of any crime against the person, or of any crime involving dishonesty, purporting to be signed by the Registrar of the Court by which the offender was convicted, shall, until the contrary is proved, be sufficient evidence of that conviction without proof of the signature or official character of the person appearing to have signed the certificate.
Compare: 1963, No. 135, s. 24(1)
140 Institute to be notified of all decisions of Court or Board under this Act
Whenever any Court or the Board makes a decision on any matter before it under this Act, the Registrar of the Court or, as the case may require, the Secretary of the Board shall forthwith send to the Institute such particulars of the decision as may be prescribed.
141 Decisions and reasons to be in writing
Every decision made under this Act by any Court, or by the Board, or by the Disciplinary Committee, together with the reasons therefor, shall be given in writing.
142 Certificate of Institute to be evidence
A certificate in writing given under the seal of the Institute to the effect that any specified person is or is not the holder of a licence, or certificate of approval, or is or is not registered as a motor vehicle salesman, or was or was not the holder of a licence or certificate of approval, or was or was not registered as a motor vehicle salesman, at any particular time or during any specified period, shall in any judicial proceedings be sufficient evidence, until the contrary is proved, of the matters referred to in the certificate.
143 Lost licences and certificates
Where the Registrar is satisfied that any licence or certificate of approval has been lost he may, on payment to him of the prescribed fee, issue to the holder of the licence or certificate of approval a substitute licence or certificate of approval.
144 Service of documents
(1)
Any notice or other document that under this Act may be or is required to be given to or served on any applicant for a licence, or certificate of approval, or for registration as a motor vehicle salesman, may be given or served by delivering it to him personally, or by leaving it or sending it by post in a registered letter addressed to him at his residential address or registered office specified in his application, or at any address for service specified in his application.
(2)
Any notice or other document that under this Act may be or is required to be given to or served on a holder of a licence, or certificate of approval, or on a registered salesman, may be served by delivering it to him personally, or by leaving it or sending it by post in a registered letter addressed to him—
(a)
At his usual or last known place of residence in New Zealand; or
(b)
In the case of a licensee, at his registered office; or
(c)
In the case of a salesman, at the place of business at which he is employed.
(3)
Any notice or other document that under this Act may be or is required to be given to or served on the Institute shall be given or served in the manner for the time being prescribed by the rules of the Institute.
(4)
Where any notice or other document is sent by post in the manner prescribed by any of the foregoing provisions of this section, it shall be deemed to have been given to or served on the addressee at the time when the letter would have been delivered in the ordinary course of the post, and, in proving service of the notice, it shall be sufficient to prove that it was duly put into the Post Office as a registered letter.
145 Fees
(1)
All fees payable under Part V of this Act shall be paid and belong to the Institute.
(2)
Subject to subsection (1) of this section, all fees received under this Act shall be paid into the Public Account to the credit of the Consolidated Revenue Account.
146 Jurisdiction, rights, and remedies conferred by this Act not exclusive
Except as otherwise expressly provided in this Act, nothing in this Act shall—
(a)
Limit the jurisdiction of any Court; or
(b)
Affect any right or remedy to which any person may be entitled otherwise than under this Act.
Compare: 1958, No. 112, s. 32
147 Rules to be approved by Minister
No rules made by the Institute under any of the provisions of this Act shall come into force unless and until they are approved by the Minister.
148 Regulations
(1)
The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
(a)
Prescribing forms to be used for the purposes of this Act, and the matters to be specified in such forms:
(b)
Prescribing fees payable under this Act in respect of any application made under this Act:
(c)
Prescribing the form of any notice required to be attached to any motor vehicle under this Act, and the matters to be specified in any such notice:
(d)
Prescribing the manner in which and the times at which any such notice is to be attached to any motor vehicle under this Act:
(e)
Exempting any class or classes of motor vehicles from any of the provisions of section 93 of this Act:
(f)
Prescribing offences in respect of the contravention of or non-compliance with any regulations made under this Act, and prescribing the amount of any fine that may be imposed in respect of such offence, being an amount not exceeding $500:
(g)
Providing for such other matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for its due administration.
(2)
Any regulations under this section prescribing the fees payable on the issue or renewal of a licence may prescribe—
(a)
Additional fees in respect of every branch office of the licensee:
(b)
Smaller fees in respect of branch offices of the licensee in the same locality as his principal place of business:
(c)
Different fees in respect of different kinds of motor vehicles:
(d)
Reduced fees in respect of licences issued after the 1st day of April in any year:
(e)
Reduced fees in respect of licences issued to 2 or more persons carrying on business in partnership.
Compare: 1958, No. 112, s. 34
149 Repeals
The enactments specified in the Schedule to this Act are hereby repealed.
Schedule Enactments Repealed
Section 149
1958, No. 112—The Motor-Vehicle Dealers Act 1958.
1961, No. 43—The Crimes Act 1961: So much of the Third Schedule to the Crimes Act 1961 as relates to the Motor-Vehicle Dealers Act 1958.
1964, No. 39—The Motor-Vehicle Dealers Amendment Act 1964.
1966, No. 75—The Motor-Vehicle Dealers Amendment Act 1966.
1967, No. 127—The Motor-Vehicle Dealers Amendment Act 1967.
1970, No. 137—The Age of Majority Act 1970: So much of the First Schedule to the Age of Majority Act 1970 as relates to the Motor-Vehicle Dealers Act 1958.
This Act is administered in the Department of Justice.
"Related Legislation
"Related Legislation
"Related Legislation
Versions
Motor Vehicle Dealers Act 1975
RSS feed link copied, you can now paste this link into your feed reader.